Shoemark v Watson
[2017] ACTMC 22
•23 October 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Citation: | Shoemark v Watson [2017] ACTMC 22 |
| Hearing Date: | 25 August 2017 |
| DecisionDate: | 23 October 2017 |
| Before: | Magistrate Morrison |
Decision: Catchwords: | See paragraph [24] CRIMINAL LAW – Road Transport Legislation – driving offences – not giving particulars about the driver to police when required – whether Defendant was a responsible person under the Road Transport (General) Act 1999 for an unregistered vehicle – proper construction of reference to person last recorded as the registered operator of a vehicle – undefined expression “responsible operator” used in evidentiary certificate – elements of offence not proved – information dismissed. |
Legislation Cited: | Road Transport (General) Act 1999 ss 10, 60, 72. Road Transport (Vehicle Registration) Act 1999 s 10. Road Transport (Vehicle Registration) Regulations 2000 regs 38, 73, 74. |
Parties: | Shoemark (Informant) |
| Representation: | Counsel Solicitors |
| File Number: | CC 11370 of 2016 |
MAGISTRATE MORRISON:
Joshua Watson has faced hearing on a single charge under section 60(1)(a) of the Road Transport (General) Act 1999 (“RTG Act”) that on 4 August 2016 he being the responsible person for a vehicle did not give particulars about the driver to a police officer when required.
The evidence at hearing was short. Written submissions were subsequently received from both prosecution and defence.
The defence argument is limited to a single issue. It is that the defendant was not the responsible person for the vehicle at the relevant time based upon what the defence says is the proper construction of the relevant legislation.
I note that section 60 of the RTG Act does not, in terms, deal with whether the offence is made out in relation to a person who is recorded as a “responsible person” at the date of the alleged offence or at the date when the relevant police requirement is made. The argument before me proceeded on the basis that it is the former and I accept that, without deciding the point, for the purpose of these reasons.
The legislative scheme for road transport in the Territory of which s60 of the RTG Act forms part casts various obligations upon a person or persons who come within what is defined as a “responsible person”. (The section 60 obligation extends beyond a responsible person to a “person in possession” and I refer to that later.)
Section 10 of the RTG Act defines who is a responsible person for the legislative scheme. Relevantly that section provides that a responsible person is:
(a) for a registered vehicle—a registered operator of the vehicle, unless the vehicle has been disposed of by the operator;
(b) for an unregistered vehicle to which a trader’s plate is attached—the person to whom the trader’s plate is issued under the Road Transport (Vehicle Registration) Act 1999;
(c) for an unregistered vehicle to which no trader’s plate is attached—a person who was last recorded as a registered operator of the vehicle.
The defence submissions point to the definition of “registered operator” in the RTG Act which cross refers to that appearing in the Road Transport (Vehicle Registration) Act 1999 (“RTVR Act”). The latter relevantly appears as:
“registered operator” means –
(a)for a vehicle registered under this Act – a person recorded in the registerable vehicles register as a registered operator of the vehicle;
(b)for a vehicle registered under the law of another jurisdiction – a person recorded in the register of the other jurisdiction corresponding to the registerable vehicles register as a registered operator of the vehicle.
The evidence before me by way of a certificate under s72 of the RTG Act can be summarised relevantly as follows:
a. on 19 July 2016 the defendant was listed as the “responsible operator” of the relevant vehicle;
b. “the Road Transport Authority was notified by a notice of disposal provided by the previous operator and recorded on 15 July 2016 that the vehicle had been disposed of to [the defendant]”;
c. the vehicle was not registered as at 19 July 2016, that registration having expired on 11 December 2014.
The defence submission goes on to say that “(t)he assertion in the certificate is not one that can be sustained by law. Accordingly, in the defendant’s submission the charge must fail.”
No objection was raised to the tender of the certificate. Nothing turns on that. Section 72, the section relied upon as the basis for admissibility of the certificate, says only that such a certificate “is evidence” of matters contained in it which fall within the categories set out in the section. The section does not say that the certificate is conclusive or even prima facie proof of those contents. The prosecution, correctly in my view, does not raise any objection to the defendant challenging the effect of the certificate as he has.
As to the merits of the argument, the prosecution submission is that the proper construction of the definition of “registered operator” appearing in the RTVR Act requires a more expansive reading of what constitutes a registered vehicle – such that the definition extends to any person who is recorded as a registered operator in respect of any vehicle which ever has been or is currently registered under the Act.
I agree that the proper construction of the legislation requires a broader reading of the linked concepts of responsible person and registered operator than that which is pressed for by the defence. I reach that conclusion however by a path different to that taken by the prosecution.
I agree with the prosecution submission that, if the defence submission is accepted, section 10(1)(c) of the RTG Act purports to expressly apply the obligations under the legislative scheme to persons to whom, by virtue of the definition in the RTVR Act, the obligations could not attach. That would be an absurd result.
The answer however lies in the proper construction of s10(1)(c) of the RTG Act and not the definition of “registered operator” in the RTVR Act.
The words used in section 10(1)(c) – referring to a person last recorded (emphasis added) as a registered operator of the vehicle – make it clear that the definition is intended to extend beyond currently registered vehicles. The fact that the vehicle is not currently registered is irrelevant. The effect of section 10(1)(c) is to extend the definition of a responsible person, insofar as relevant unregistered vehicles are concerned, to the person last recorded in the registered vehicles register as a registered operator of the vehicle.
That conclusion does not dispose of the contest before me.
The expression used in the s72 certificate in evidence is that the defendant was recorded as the responsible operator (emphasis added) of the vehicle on 19 July 2016 (my emphasis). I cannot see that the expression “responsible operator” is one used anywhere in either the RTG Act or the RTVR Act. I am surprised that no submissions were directed to this apparent anomaly.
If the s72 certificate had been to the effect that the defendant had been recorded by the Road Transport Authority as the registered operator of the vehicle then a question would potentially arise as to whether the Authority had the power to make such an entry in its records in respect of a vehicle which was not registered.
No evidence was tendered going to the process by which information or transactions are recorded in respect of vehicles not registered at the relevant time, and no submissions were made on the point.
I note as an aside that the statutory register required by the legislative scheme to be kept is one of “registerable vehicles” as opposed to registered vehicles – (s10 of RTVR Act); and that the register contains details of all registerable vehicles “that are currently registered or that have been registered within the previous 2 years” – reg 38 of Road Transport (Vehicle Registration) Regulations 2000 although, unsurprisingly the obligations about transfer of registration in regulations 73 and 74 are cast only on disposers and acquirers of registered (emphasis added) vehicles.
However the question of whether the Authority has the power to record a person as the registered operator of a vehicle not registered at the relevant time need not be decided by me because of the anomaly in the certificate.
The certificate is not evidence that the defendant was the registered operator of the vehicle. It purports to be evidence that he was the responsible operator of the vehicle. Whatever that expression might mean it is not evidence which goes to the element of the offence to be made out by the prosecution.
It follows that the prosecution case fails insofar as it relies upon proving that the defendant was the responsible person for the vehicle.
The prosecution submissions also raise in the alternative that the obligations in section 60 of the RTG Act extend to “the person in possession of the vehicle”. That is correct but the difficulty for the prosecution is that the charge against the defendant particularised that he was the responsible person for the vehicle, rather than the person in possession of it, and the prosecution conducted its case at hearing on that basis. No application to amend the charge was made. The prosecution cannot be permitted to argue a different case now.
In the circumstances the prosecution case is not made out. I find the defendant not guilty and the information is dismissed.
I certify that the preceding twenty four [24] paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Matthew Bautz
Date: 23 October 2017
0
0
3