R v Fayda Taleb
[2012] NSWDC 269
•18 October 2012
District Court
New South Wales
Medium Neutral Citation: R v Fayda TALEB [2012] NSWDC 269 Decision date: 18 October 2012 Before: Cogswell SC DCJ Decision: Conviction set aside.
Catchwords: CRIMINAL LAW - Appeal against conviction - offence of false nomination of person in charge of vehicle - coincidence evidence - 4 statutory declarations in 13 months nominating drivers with international drivers licences - whether evidence excluded all reasonable hypotheses consistent with innocence - Road Transport (General) Act 2005 s 179 - time limit for bringing proceedings - meaning of "supplied" document - whether offence complete when form completed or when received. Legislation Cited: Crimes (Appeal and Review Act) 2001, s 20.
Evidence Act 1995, s 98.
Road Transport (General) Act 2005 s 179(4), s 179(7), s 181.Category: Principal judgment Parties: Regina (State Debt Recovery Office)
Fayda Taleb (Appellant)Representation: Counsel:
M A Sinadinovic and B Saddiq (Appellant)
Solicitor:
B Hearnden (State Debt Recovery Office)
File Number(s): DC 2012/53683
Judgment
Fayda Taleb was the owner of several cars. On 24 December 2010, just before midnight, one of the cars was recorded as exceeding the speed limit going through the Cross City Tunnel. Because Ms Taleb was the owner of the car - or as the Road Transport (General) Act 2005 describes it, its 'registered operator' - a penalty notice was issued to her.
Ms Taleb took the option of filling in a statutory declaration. She nominated someone else as driving the car at the time. The form said that "the person named below was responsible for the offence." The person she nominated was Hassan Farhat. The person's address she provided as 44 Preddys Road, Bexley. She provided a date of birth and opposite the words provided by the form for a licence number she wrote, "International Lebanon".
The State Debt Recovery Office prosecuted Ms Taleb claiming that in completing that statutory declaration she had falsely nominated Hassan Farhat as the person who was in charge of her car at the time that it was detected speeding through the Cross City Tunnel. Ms Taleb said she was not guilty of the offence and took the matter to court.
It came before his Honour Magistrate Pierce in the Local Court at the Downing Centre on 7 May 2012. His Honour found the offence proved and convicted Ms Taleb. Ms Taleb has appealed against her conviction.
When a person appeals to the District Court from a conviction in the Local Court the District Court judge hears the case as a fresh case. The judge is not usually concerned with whether there was any error in the reasoning of the magistrate in making the decision. The case is simply run again before the District Court judge. That is essentially what has happened in this case.
The State Debt Recovery Office was represented by Mr B. Hearnden and Ms Taleb was represented by Mr M. A. Sinadinovic and Mr B. Saddiq.
The evidence against Ms Taleb presented before his Honour, and before me, relied essentially upon what the Evidence Act 1995 calls coincidence evidence. The prosecutor tendered material which became exhibit C before me. It showed that this was not the first time that Ms Taleb had nominated someone else as driving her car when it had committed an offence which attracted a penalty notice. In fact on 3 previous occasions within about 13 months she had submitted a statutory declaration. On each occasion Ms Taleb nominated a different person as being the person responsible for the offence. In 2 of the other forms the person had the same address as Hassan Farhat. In a fourth form the person lived at an address in Carlton. However, in all 4 forms opposite the words "licence number" Ms Taleb had entered the same reference to an international licence issued in Lebanon.
There were 2 other important pieces of evidence in Mr Hearnden's case. One was that a search by the Australian Government department responsible for immigration had detected that no person bearing any of the names in the forms had entered or left Australia since 1990. I accept that that cut off date was reasonable. In addition no person bearing any of those names had held a driver's licence in Australia nor had any recorded contact with any of the Australian licensing authorities.
Mr Hearnden's case is that the last form - which is the relevant one for this offence - was filled in falsely, specifically concerning the name Hassan Farhat. His proposition is that there was a growing improbability from the time of the first form being submitted until the last (over some 13 months) that each time the same facts had occurred. It was so improbable, he said, as to beggar belief that the same thing had occurred to Ms Taleb on 4 occasions.
Mr Sinadinovic, who argued the case in this Court on behalf of his client, made two points in defence. The first concerned the proceedings being issued out of time. The second concerned the evidence not being capable of satisfying me beyond reasonable doubt of the guilt of his client.
His first point rested on s 181 of the Road Transport (General) Act which provides that proceedings for an offence such as this "may be commenced within one year after the date of the alleged commission of the offence." The proceedings commenced on 10 February 2012. The statutory declaration was received on 10 February 2011. It appears to be common ground that if that is the case then there is no defence under s 181. However, Mr Sinadinovic argues that the offence was committed before 10 February 2011, namely on 4 February 2011 when his client completed the statutory declaration asserting that Hassan Farhat was responsible for the offence.
The offence, which his client has been convicted of, is created by s 179(7) of the Road Transport (General) Act. It says that a person must not "in a relevant nomination document supplied under subsection (4), falsely nominate another person as the person who was in charge of the vehicle at the time the offence occurred." Mr Sinadinovic's argument is that the offence was complete (if his client is guilty) when she completed the statutory declaration. He argued that the word "supplied", as appears in s 179(7), served as an adjective to describe the document. He argued that the offence is complete in the sense of the actus reus, once the document is signed. He argues that the offence cannot depend upon it being complete only when discovered. He referred also to part of the form of the statutory declaration warning that a person "who makes a statement" which they know to be false in a material particular is liable to a fine. The fine coincides with the amount specified in subsection (7).
I do not accept Mr Sinadinovic's argument. To my mind an element of the offence created by s 179(7) is that the document be in fact supplied to an authorised officer in accordance with subsection (4). That subsection provides that a person must supply (by effectively a statutory declaration) "to the authorised officer...the name and address of the person who was in charge of the vehicle at the time the offence occurred." I accept Mr Hearnden's submission that the word "supplied" is part of the definition of the offence and it must have been in fact supplied to the authorised officer.
The purpose of the legislation is to enable the relevant authorities to fix liability on the person really responsible for the offence. It is not until the relevant authority is in possession of information that the authority can act. There would be little point, in my opinion, in providing in this legislation for an offence of falsely completing a document or a statutory declaration when such an offence is already dealt with in the Oaths Act 1900. The purpose, in my opinion, of the legislation - or this part of the legislation - is to enable the relevant authority to receive accurate information so that it can pursue the real offenders. In my opinion the court attendance notice was issued within time.
Mr Sinadinovic's second point is very straightforward. He argues, in his helpful written submissions and also in his oral submissions, that there is a "reasonable hypothesis consistent with innocence".
I should have added earlier that in each of the four cases, the penalty notice was paid by a person whose identity is not the subject of the evidence. Mr Hearnden's argument here relies, as I have said, on coincidence evidence. Mr Hearnden acknowledges that there are three reasonable hypotheses consistent with innocence but that none of them is applicable in this case.
One is that the drivers had entered into Australia under another name. I am prepared to accept that that is not a reasonable hypothesis. In other words, I accept Mr Hearnden's submission because of the searches undertaken by the Government department responsible for immigration. A second possible hypothesis is that Ms Taleb had mis-recorded the information. I agree that that is not a reasonable hypothesis because of the unlikelihood of the information being mis-recorded in exactly the same way on 4 separate occasions over about 13 months. Mr Hearnden acknowledged that a third possible hypothesis which - he argued was not reasonable - was that the details given by the drivers on each occasion to Ms Taleb, were untruthful. He argued that that hypothesis was so improbable that I could be satisfied beyond reasonable doubt that it could be excluded.
The hypothesis as developed in argument by Mr Hearnden seemed to come down to this: 4 people on separate occasions within 13 months misled Ms Taleb by asserting that they had international licences issued in Lebanon in circumstances where none of those 4 persons had any Australian licence.
Mr Sinadinovic's contrary argument focussed on the terms of the offence which his client is said to have committed. What the prosecutor claimed she was guilty of was falsely nominating another person as the one who was in charge of her car at the time. Mr Sinadinovic argued that I could not be satisfied beyond reasonable doubt that when his client nominated Hassan Farhat on 4 February 2011 in her statutory declaration as the driver of her car when the offence occurred, that she was falsely nominating another person.
There is, Mr Sinadinovic argued, a reasonable possibility that Hassan Farhat exists and was driving his client's car at the relevant time so that her nomination of him was not false. An important aspect of his argument is this. The searches undertaken by the State Debt Recovery Office did not include checking whether in this case Hassan Farhat lived at 44 Preddys Road, Bexley. In other words, Mr Sinadinovic argues there has not been excluded the reasonable possibility that if someone went and knocked on the door at 44 Preddys Road, Bexley they may well find that Hassan Farhat lives there.
I think there is a good deal of force in that argument. The force is somewhat reduced by the assertions on three previous occasions that a person with an international licence issued in Lebanon drove his client's car. However, given the state of the evidence I do not regard the possibility advanced by Mr Sinadinovic as far fetched or unreasonable. Three of the persons nominated in the forms were said to live at 44 Preddys Road, Bexley. As I said, one of them is nominated living in Carlton.
To my mind, the reasonable hypothesis consistent with innocence is that Ms Taleb was happy to lend her cars to other people. If they committed regulatory offences, then she would expect that they would pay the fines. As it happened, 4 offences were committed within about 13 months. That is not an unreasonable assumption or an unreasonable scenario because it may be that Ms Taleb regularly lent her car to others. It may be that three of the persons she lent the cars to lived at 44 Preddys Road, Bexley. That has not been excluded as a reasonable possibility because no searches have been undertaken as to whether persons of that name may have lived at that address.
What is rather extraordinary, and nearly tips the balance against his client, is that none of the persons to whom she lent the car - in the reasonable hypothesis scenario - had any form of contact with Australian traffic authorities. They were all unlicensed. But of course, it may be that that was why they wanted to borrow somebody else's car. I do not regard the fact that the immigration authorities do not disclose any of the persons entering or leaving Australia within the relevant time, as being of great significance. It could be that all of the persons were born in Australia, had the names ascribed by Ms Taleb, lived at those addresses but lied to her about having international licences issued in Lebanon.
The extraordinary thing, I repeat, is that none of them had any contact with the traffic authorities. But the important thing, Mr Sinadinovic emphasised more than once, was to focus on the question whether I am satisfied beyond reasonable doubt that his client, in completing the form on 4 February 2011, falsely nominated Hassan Farhat as the person who was driving her car through the Cross City Tunnel on 24 December 2010.
The reasonable possibility that that assertion was true has not, in my opinion, been excluded by the prosecutor and I would therefore acquit Ms Taleb of the offence. In terms of the legislation governing the appeal, under s 20 of the Crimes (Appeal and Review) Act 2001, I determine this appeal against conviction by setting aside the conviction.
I should add finally that I have been greatly assisted by both Mr Hearnden and Mr Sinadinovic in their careful, helpful and fair submissions.
HIS HONOUR: I am going to add now that it is 4.35pm. The court officer has been here 35 minutes beyond what he expected and so has the monitor, whom we cannot see, and I appreciate that. It has enabled me to dispose of this case which was not straightforward.
HEARNDEN: Your Honour could I hand back the file?
HIS HONOUR: Thanks Mr Hearnden and the exhibits A to F and the two MFI's will go onto the Court file. Again gentlemen, thank you for your assistance.
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Decision last updated: 13 March 2013
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