Saunders v Bowman - [2008] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

Saunders v Bowman [2008] QCA 112

PARTIES:

SAUNDERS, Lance Geoffrey Thomas
(appellant/applicant)
v
BOWMAN, Gary
(respondent/respondent)

FILE NO/S:

CA No 383 of 2007
DC No 758 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 May 2008

JUDGES:

de Jersey CJ, Keane JA and Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused

CATCHWORDS:

TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – DRIVING IN BREACH OF SPECIFIC SPEED LIMITS – where a vehicle registered in the applicant's name was recorded speeding by a police speed camera – where the applicant established that he was not driving the vehicle at the time of the offence – where the applicant failed to ascertain the identity of the driver at the time of the offence – whether the applicant could rely upon the defence contained in s 114(3) and (6) of the Transport Operations (Road Use Management) Act 1995 (Qld)

District Court of Queensland Act 1967 (Qld), s 118
Transport Operations (Road Use Management) Act 1995 (Qld), s 114

COUNSEL:

The applicant appeared on his own behalf
D A Holliday for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

JERSEY CJ: de I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the application should be refused for those reasons.

KEANE JA: On 5 April 2006 a red Mitsubishi hatchback motor vehicle, whose registered owners were Mr and Mrs Saunders, was recorded speeding by a police speed camera. On 21 April 2006 Mr Saunders (but not Mrs Saunders) received a traffic infringement notice in the mail.

The effect of s 114(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) ("the TORUM") was that, in such a case, the registered owner is "taken to have committed the offence … even though the actual offender may have been someone else."

Section 114(3) and (6) of the TORUM allow a registered owner of a vehicle to avoid the deeming effect of s 114(1) if the person is able to prove that:

(a) he or she was not driving the vehicle at the time of the offence;

(b) he or she has notified the appropriate official, either of the name and address of the actual driver, or that he or she does not know and cannot ascertain, with reasonable diligence, the name and address of the driver; and

(c) that at the time of the offence he or she was exercising reasonable control over the vehicle's use, and had in place a reasonable system for ascertaining the identity of the driver.

At the hearing of the charge before the learned Magistrate, Mr Saunders established that he was not driving the vehicle at the…

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 Saunders v Bowman

Details

AGLC: Saunders v Bowman [2008] QCA 112
Case: [2008] QCA 112
Decision Date: 9 May 2008

CaseChat Overview and Summary

In the case of Saunders v Bowman, the applicant, Saunders, contested a speeding offence charged under the Transport Operations (Road Use Management) Act 1995 (Qld). The issue arose when Saunders' vehicle was captured by a speed camera exceeding the speed limit. Saunders argued that he was not the driver at the time of the offence. However, he could not identify who was driving the vehicle during the incident. The central legal question before the court was whether Saunders could rely on the defence provisions outlined in sections 114(3) and (6) of the Act, which pertain to the identity of the driver. Specifically, the court had to determine whether Saunders' failure to identify the actual driver precluded him from successfully invoking the defence.

The court examined the statutory provisions and considered precedents that addressed similar defences in traffic law. It found that for the defence to be valid, the applicant must demonstrate that they were not the driver and, crucially, must be able to identify the person who was driving at the time of the offence. Since Saunders could not provide the identity of the actual driver, the court ruled that he could not avail himself of the defence. The court concluded that without identifying the driver, Saunders' claim did not meet the statutory requirements necessary to successfully defend against the speeding charge.

The court ultimately denied Saunders' application for leave to appeal, upholding the lower court's decision. The reasoning hinged on the statutory language and the necessity for the applicant to identify the driver to successfully claim the defence under the Act. This decision reinforces the importance of being able to pinpoint the driver's identity as a critical component of the statutory defence. Consequently, Saunders' application for leave to appeal was dismissed, and the speeding conviction remained in place.

Orders

Orders of the court

Application for leave to appeal refused

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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CITATION:	Saunders v Bowman [2008] QCA 112
PARTIES:	SAUNDERS, Lance Geoffrey Thomas (appellant/applicant) v BOWMAN, Gary (respondent/respondent)
FILE NO/S:	CA No 383 of 2007 DC No 758 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6 May 2008
JUDGES:	de Jersey CJ, Keane JA and Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused
CATCHWORDS:	TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – DRIVING IN BREACH OF SPECIFIC SPEED LIMITS – where a vehicle registered in the applicant's name was recorded speeding by a police speed camera – where the applicant established that he was not driving the vehicle at the time of the offence – where the applicant failed to ascertain the identity of the driver at the time of the offence – whether the applicant could rely upon the defence contained in s 114(3) and (6) of the Transport Operations (Road Use Management) Act 1995 (Qld) District Court of Queensland Act 1967 (Qld), s 118 Transport Operations (Road Use Management) Act 1995 (Qld), s 114
COUNSEL:	The applicant appeared on his own behalf D A Holliday for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent