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Court File Numbers: CAN 40143/2024 CAN 40193/2024 KELLY AJ: Introduction

1. This is an appeal from a magistrate who convicted the appellant of two parking offences contrary to s 213K of the Road Transport (Road Rules) Regulation 2017 (ACT) (‘Road Rules Regulations’).

2. Although it is an appeal from the decision of Magistrate Theakston on 22 October 2024, the genesis of the appeal lies in an earlier decision of Magistrate Burt on 24 April 2024. On that date, Magistrate Burt acquitted the appellant of a similar offence.

3. For the reasons which follow, the appellant’s reliance on the earlier magistrate’s decision is misconceived. None of the grounds of appeal, including those grounds in respect of which the appellant now seeks leave to include, have any merit and the appeal is dismissed.

Jurisdiction on appeal

4. The Supreme Court’s appellate jurisdiction in relation to conviction appeals from the Magistrates Court derives from ss 207-208 of the Magistrates Court Act 1930 (ACT). The principles applying to appeals of this nature were summarised by Baker J in Inglis v Adamson [2024] ACTSC 4 at [47]-[50] as follows: [47] The appellant’s conviction appeal was brought pursuant to ss 207 and 208(1) of the Magistrates Court Act 1930 (ACT), which confers jurisdiction on this Court to hear and determine an appeal from a person who has been convicted of a summary offence in the Magistrates Court. [48] An appeal under ss 207 and 208 of the Magistrates Court is by way of rehearing: Alexander v Bakes [2023] ACTCA 49. On this rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the Magistrates Court Act. This task requires that the Court undertake a “real review” of the evidence: Alexander v Bakes at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]. [49] The onus is on the appellant to identify and demonstrate error in the Magistrate’s findings: Alexander v Bakes at [22], citing Allesch v Maunz [2000] HCA 40; 203 CLR 172 at 180 [23] and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19]. [50] As the proceedings in the Magistrates Court proceeded by way of the tender of unchallenged evidence, the principles concerning the deference to be afforded to credibility findings of a Magistrate are not relevant to the determination of the present appeal; cf Alexander v Bakes at [13] and [20]. Factual background

5. The appellant was charged with two separate breaches of s 213K(1) of the Road Rules Regulations, being that on 14 August 2023 at 2:53pm and on 23 October 2023 at 3:16pm, the appellant did park a vehicle with ACT vehicle registration number YPM58U without a current/current equivalent ticket displayed/properly displayed at certain locations on University Avenue.

6. The appellant was formally charged in the Magistrates Court on 27 March 2024 and entered pleas of not guilty on each charge.

7. After a contested hearing on 22 October 2024, Magistrate Theakston found the appellant guilty in respect of both charges. The appellant was fined $166 in respect of each charge and given nine months to pay the fine.

Appeal grounds

8. On 19 November 2024, the appellant filed a Notice of Appeal against the convictions and sentences imposed by the magistrate. In that notice, the appellant identified the following grounds of appeal: (a) The first instance decisions are wrong at law as proving ‘possession or control’ beyond a reasonable doubt does not prove ‘driver’ beyond a reasonable doubt (b) The first instance decisions were beyond power as His Honour was not permitted to depart from the ratio of R v Budd (ACT Magistrates Court, Burt M, 24 April 2024), 40653/2023 where the only difference between the Court in 40653/2023 and the first instance decisions was a differently composed bench (Queensland v The Commonwealth (1977) 139 CLR 528 [sic] ‘Second Territory Senators’ Case’) (c) The first instance decisions are wrong at law because His Honour purported to require the defendant prove facts in issue that were necessary to establish an element of the offence (contrary to Woolmington v The Director of Public Prosecutions [1935] AC 462, 481 (received in Sodeman v The King (1936) 55 CLR 192, 196)). i. The facts in issue being: the validity of various subordinate laws and statutory instruments (d) The first instance decisions relied on a finding of fact it was not open to His Honour to make because there was no evidence before His Honour that the subordinate laws and statutory instruments relied on by the Crown existed (Ostrowski v Palmer (2004) 218 CLR 493, [2]-[3]) i. And, to the extent necessary to decide, it was not within His Honour’s power to inform himself about a fact in issue where the burden was on the prosecution to prove that fact in issue and the prosecution led no evidence of that fact in issue (e) The first instance decisions relied on a finding of fact that it was not open to His Honour to makes [sic] because, per His Honour’s own reasons (subject to the transcript) His Honour held ‘possession and control doesn’t prove driver’ (f) The first instance decisions were wrong at law to the extent His Honour held the relevant subordinate laws and statutory instruments to be valid (R v Wicks [1998] AC 92, 115 (received Telstra Corp v Queensland (2013) 217 FCR 181, [25]) (g) The first instance decisions failed to correctly interpret various statutory provisions, because, for example, different words were not taken to have a different meaning (Wilson v Anderson (2002) 213 CLR 401, [8], [151]), they were not construed narrowly (Momcilovic v The Queen [2011] 245 CLR 1, [44]), ambiguity was not resolved in favour of the defendant (Beckwith v The Queen (1976) 135 CLR 569, [9]-[10]), and the principle of legality was not applied (Hurt v The King (2024) 98 ALJR 485, [106]; see also Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 328-329) (h) The first instance decisions relied on the prosecution’s submission that ‘possession or control’ meant ‘driver’. Because the Court had already decided this point (R v Budd (ACT Magistrates Court, Burt M, 24 April 2024), 40653/2023), it was not open to the prosecution to make this submission and therefore not open to the Court to accept it (Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325, [3]-[4] (i) The first instance reasons for decisions were an insufficient and therefore invalid exercise of the Court’s power. In particular, the reasons for decision did not cite several binding and on point authorities submitted by the defendant, nor give reasons why the Court was not bound to follow those binding authorities. (j) If the finding of guilt is not quashed, the first instance sentencing decisions: i. Relied solely on the defendant's evidence. His Honour disregarded this evidence despite there being no evidence to the contrary before the Court. ii. Relied on His Honour’s opinion about topics His Honour is, in the technical sense, ignorant, and His Honour’s opinion is therefore not a valid basis on which to make a sentencing decision because it is not an expert opinion iii. Were in error because His Honour held, subject to the transcript, that ‘[I find it] difficult to accept the defendant did not have capacity to deal with his children’ when there was no evidence before the Court, from the defendant or otherwise, that the defendant did not have capacity to deal with his children iv. Otherwise were not open to the Court to be made on the evidence before the Court and were ableist.

9. On 5 June 2025, the appellant filed a further application seeking leave to amend the notice of appeal and to adduce further evidence on appeal pursuant to s 214 of the Magistrates Court Act 1930. I will touch on the application to adduce further evidence later in this judgment, but will first turn my mind to the grounds of appeal. As part of the appellant’s proposed amendments to his notice of appeal, the appellant was seeking to add new grounds of appeal, being grounds (j)-(n).

10. The new grounds sought to be added were articulated as follows: (j) It was not open to His Honour to find that the Appellant was the ‘driver’ given the uncontested evidence from the Respondent’s witness that ‘no driver sighted in the vehicles’ and ‘there is no driver’. (k) His Honour’s purported findings of fact and law are contrary to law because they contravene on [sic] or more of the Human Rights Act 2004 (HRA) ss 21(1), 22(1), 30. (l) His Honour’s findings are contrary to law as they contravene Criminal Code 2002 Chapter 2, for example, s 12 and/or Part 2.6. (m) The legislation (including subordinate legislation) relied on at first instance is unconstitutional and therefore of no effect: i. Adjudging criminal guilt is an exclusively judicial function ii. It is unconstitutional to cloak executive (or legislative) acting in the neutral colours of judicial action iii. Impairing the Court’s institutional integrity is unconstitutional, and the legislature (purporting) to adjudge criminal guilt impairs the Court’s institutional integrity iv. The legislative scheme relied on to establish guilt, in whole or in part, purports to require or permit the executive and/or legislature to adjudge criminal guilt (for example, the infringement notice scheme generally, the multiple reverse onuses, and the multiple deeming provisions, and the issuing of evidentiary certificates) i. That is, the legislature purports to deem as proven, or allow the executive to deem as prove, all fault and physical elements relating to a defendant v. Further or alternatively, the Court’s involvement is merely to rubber stamp as true the unproven facts deemed by the legislature and/or executive (deeming is not proof) and, consequently, enter a finding of ‘guilty’ without the Court adjudging anything or otherwise exercising a judicial function. Put another way, the Court’s only role is to put the Court’s name to a finding of guilt that has been pre-determined by the legislature and/or executive vi. See, for example, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, South Australia v Totani (2010) 242 CLR 1, and related cases.

11. The new ground (n) that the appellant sought to be added was, in substance, the same as ground (j) in the original application, with an additional particular added, alleging the magistrate’s sentencing decisions contravened “one or more of” ss 8(2)-(3), 11(2) and 30 of the Human Rights Act 2004 (ACT).

12. In his written argument on appeal, the appellant identified what he submitted were the substantive issues raised by him in his appeal relating to the magistrate’s determination of his guilt. Those issues were identified as follows: One: ‘Driver’ not proven. Two: Precedent not followed. Three: Sections 56 and 72 certificates incorrectly relied on. Four: Statutes misinterpreted. Five: Subordinate laws not valid and/or misinterpreted. Six: Judicial notice incorrectly taken and/or not taken. Seven: New evidence changes outcome. Eight: Failed to apply Human Rights Act 2004 (ACT) (HRA). Nine: Golden thread not applied. Ten: Legislative scheme unconstitutional. Ground 4(a) – (i)

13. I deal first with the appellant’s grounds of appeal set out in [4](a)-(i) of the appellant’s Notice of Appeal, insofar as these particulars raise an issue as to the correctness of the magistrate’s decision that “possession and control” in s 53AA of the Road Transport (General) Act 1999 (ACT) includes the driver, and further, raise concerns that the magistrate was wrong to depart from an earlier decision of Magistrate Burt which the appellant submitted was binding upon him.

Departing from an earlier decision of the Magistrates Court

14. In making the submission that the magistrate failed to follow an earlier decision which was binding upon him, the appellant relied on cases such as Western Australia v Commonwealth [1975] HCA 46; 134 CLR 201 and Queensland v Commonwealth [1977] HCA 60; 139 CLR 585.

15. The doctrine of precedent states that the decision of a higher court on a matter of law is binding upon courts that are lower in the hierarchy. Contrary to the appellant’s submissions, a decision made by a court within the same level of the hierarchy is not binding upon a subsequent decision maker.

16. Justice Gibbs in Queensland v the Commonwealth, quoting Isaacs J in Australian Agricultural Co. v Federated Engine-Drivers and Firemen’s Association of Australasia [1913] HCA 41; 17 CLR 261, said at 599: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

17. In other words, the decision of an earlier court in the same jurisdiction is merely persuasive. As I will demonstrate, here the magistrate gave careful and respectful reasons for reaching a different conclusion to the earlier magistrate, engaging in the kind of consideration that would permit his Honour to depart from the reasoning used in an earlier decision of the Magistrates Court.

18. To the extent that the appellant relied on these authorities to argue that the magistrate was bound by the decision of the earlier magistrate, his argument is misconceived.

19. In the earlier decision, the magistrate had concluded that the deeming provision in s 53AA of the Road Transport (General) Act 1999, insofar as it refers to “the individual in possession or control of the vehicle at the time of the offence”, does not include the driver.

20. Before referring to the Magistrate Theakston’s reasons for reaching a different conclusion to the earlier magistrate, it is helpful to set out what the statutory scheme is in the Road Transport (General) Act 1999 with respect to the issuing of infringement notices for breaches of the Road Transport (General) Act 1999 and Road Rules Regulations.

Legislative Scheme

21. Contravening s 213K of the Road Rules Regulations is an infringement notice offence and an infringement notice in this respect may be more commonly referred to as a parking ticket. Where an infringement notice for an infringement notice offence is served on a person, that person must, within 28 days after the infringement notice is served, take one of the steps provided under s 26(2) of the Road Transport (General) Act 1999. The options include applying for withdrawal of the infringement notice under s 26(2)(c) or, if the person asserts he or she was not the person who committed the offence, giving the administering authority an infringement notice declaration under s 26(2)(d).

22. Section 27 of the Road Transport (General) Act 1999 deals with reminder notices regarding infringement notices for infringement notice offences. Section 27 provides: 27 Reminder notice—service and contents (1) This section applies if— (a) an infringement notice for an infringement notice offence is served on a person; and (b) the infringement notice has not been withdrawn; and (c) the person— (i) has not done anything mentioned in section 26 (2) in relation to the infringement notice, has not been granted an extension of time to do something mentioned in section 26 (2), and at least 28 days have passed since the date the infringement notice was served; or (ii) if the person has been granted an extension of time to do something mentioned in section 26 (2)—has not done anything mentioned in that subsection within the extended time. Note For when a notice sent by post is taken to be given, see the Road Transport (General) Regulation 2000, s 9B. (2) The administering authority must arrange for service of a notice (a reminder notice) on the person. Note If a reminder notice has been served on a person for an infringement notice offence, the total amount payable by the person for the infringement notice penalty for the offence is the prescribed amount of the penalty payable for the offence plus the prescribed amount payable for the cost of serving the reminder notice (see dict, def infringement notice penalty). (3) The reminder notice must include the information prescribed by regulation.

23. A person who has been served with a reminder notice must take one of the steps provided by s 28(2) of the Road Transport (General) Act 1999 within 28 days after the service of the reminder notice. The options are the same as those provided under s 26(2), with s 28(2)(c)-(d) providing for a person to apply for withdrawal of the infringement notice or to give the administering authority an infringement notice declaration. What is important is that both ss 26(2) and 28(2) refer to an “infringement notice declaration”. Such a notice is defined in s21A(1) of the Road Transport (General) Act 1999 as meaning any of the following: (a) an illegal user declaration; (b) a known user declaration; (c) a sold vehicle declaration; or (d) an unknown user declaration.

24. Section 21A of the Road Transport (General) Act 1999 defines a “known user declaration” as: known user declaration means a written statement made by a person in relation to an infringement notice offence involving a registrable or rail vehicle that includes— (a) either— (i) if the person is the responsible person for the vehicle— (A) a statement that, at the time of the offence, the person was not in possession or control of the vehicle; and (B) sufficient information to identify and locate the person last known to be in possession or control of the vehicle; or (ii) if the person is not the responsible person for the vehicle—a statement that, at the time of the offence, the person was in possession or control of the vehicle; and (b) any information prescribed by regulation.

25. Section 21A of the Road Transport (General) Act 1999 defines an “unknown user declaration” as: unknown user declaration means a written statement made by a person in relation to an infringement notice offence involving a registrable or rail vehicle that includes— (a) a statement that the person— (i) was not in possession or control of the vehicle at the time of the offence; and (ii) does not know the identity of the person who was in possession or control of the vehicle at that time, despite genuine efforts to identify that person; and (b) a statement about the efforts made by the person to identify the person in possession or control of the vehicle at the time of the offence; and (c) any information prescribed by regulation.

26. Section 10 of the Road Transport (General) Act 1999 provides that a responsible person for a registered vehicle for the purpose of road transport legislation is a registered operator of the vehicle, unless the vehicle has been disposed of by the operator.

27. Section 33 of the Road Transport (General) Act 1999 sets out the responsibilities of a responsible person who has an infringement notice served on them and was not in possession or control of the vehicle at the time of the offence. Pursuant to s 33(2), the responsible person must take all reasonable steps to give the administering authority sufficient information to identify and locate the individual who was in possession or control of the vehicle at the time of the offence.

28. There is an important note at the foot of s 33 which states: The responsible person for a registrable or rail vehicle involved in an infringement notice offence is taken to be the individual in possession or control of the vehicle at the time of the offence unless the responsible person proves, on the balance of probabilities, that the person was not in possession or control of the vehicle at the time of the offence (see s 53AA).

29. All reasonable steps for the present purpose is also defined in s 32(1) of the Road Transport (General) Act 1999: (1) In this division: all reasonable steps—a responsible person for a registrable or rail vehicle takes all reasonable steps to assist the administering authority to identify and locate the individual who was in possession or control of the vehicle at the time of an infringement notice offence involving the vehicle— (a) if— (i) the person gives the administering authority an infringement notice declaration for the offence within the time required under division 3.2 (Infringement and reminder notices) (including any additional time allowed under that division); and (ii) the administering authority accepts the infringement notice declaration for this division; and (b) if the administering authority requires an approved form to be completed in relation to the offence—if the person completes the form properly; and (c) if the person responds to any correspondence from the administering authority within 14 days after the correspondence is served on the person.

30. It can be seen from these provisions that the legislation provides a scheme whereby, if a person is served with an infringement notice and wishes to deny responsibility, that person has a responsibility to take all reasonable steps to give the authority sufficient information to identify and locate the individual who was in possession or control of the vehicle at the relevant time.

31. As it is the source of some dispute in this matter, I also note the presumption created by s 53AA of the Road Transport (General) Act 1999. Section 53AA relevantly provides: 53AA Presumption against responsible person If the responsible person for a registrable or rail vehicle involved in an infringement notice offence is served with an infringement notice for the offence, it is presumed in any proceeding against the person for the offence, unless the contrary is proved, that the responsible person was the individual in possession or control of the vehicle at the time of the offence. Note The responsible person for a registrable vehicle bears a legal burden of proving that the responsible person was not the individual in possession or control of the vehicle at the time of the offence (see Criminal Code, s 59 (c)).

32. In this context, it is relevant to turn to the evidence which was before the magistrate.

Evidence before the Magistrate

33. The prosecution tendered seven exhibits at the trial before Magistrate Theakston, with three relating to CAN 40143/2024 and four relating to CAN 40193/2024. The three exhibits tendered on the prosecution of CAN 40143/2024 were: (a) Exhibit P1: photographs of the parked car and expired ticket; (b) Exhibit P2: a certificate pursuant to s 72 of the Road Transport (General) Act 1999; and (c) Exhibit P3: certificate pursuant to s 56 of the Road Transport (General) Act 1999.

34. The four exhibits tendered by the prosecution for CAN 40193/2024 were: (a) Exhibit P1: statement of facts; (b) Exhibit P2: a certificate pursuant to s 72 of the Road Transport (General) Act 1999; (c) Exhibit P3: certificate pursuant to s 56 of the Road Transport (General) Act 1999; and (d) Exhibit P4: photographs of parked car and expired ticket.

35. The contents of the certificates pursuant to ss 56 and 72 of the Road Transport (General) Act 1999 are important in the context of the appellant’s complaint that a critical element of the offence under s 213K of the Road Rules Regulations was not proved.

36. The contents of the s 56 certificate issued in relation to CAN 40193/2024 is set out in full below with emphasis added. I note that the s 56 certificate issued in relation to CAN 40143/2024 contains the same language and processes, but relates to a different infringement notice offence and infringement notice. I, Breeze Mojel, Senior Review Officer, Access Canberra Infringement Team, … delegated under section 17(1) of the Road Transport (General) Act 1999 (“the Act”), to complete and sign a certificate under section 56 of the Act, hereby state that: 1. The administering authority for this type of offence (item 313 of Part 1.12A of the Schedule) of the Road Transport (Offences) Regulation 2005 is the Road Transport Authority in accordance with sub-regulation 8(1)(a) and (b) of the same regulation. 2. Infringement notice 1049556859 was served to ACT registration YPM58U by placing the infringement notice in an envelope addressed to the Responsible Person for the Vehicle in a prominent position under a front windscreen wiper of the vehicle on 23 October 2023. 3. The responsible person of the vehicle, ACT registration number YPM58U was Christopher R Budd, born [date of birth], ACT Drivers Licence number [licence number] of [address] on the 23 October 2023. 4. Reminder notice number 2814299499 was printed and posted by prepaid post on 27 November 2023 and deemed to have been served on 12 December 2023. 5. On the 03 December 2023, representation from Christopher R Budd was received by the administering authority notifying the authority he was disputing liability for the offence for infringement notice 1049556859. 6. The administering authority replied to the notice of dispute on the 05 December 2023 by sending a letter to the email address supplied by Christopher R Budd on that same day advising that the matter had been reviewed and the infringement notice could not be withdrawn and the matter referred to the ACT Magistrates Court. 7. The administering authority has not allowed additional time to dispute liability or for payment for the penalty for infringement notice 1049556859. 8. The infringement notice penalty for infringement 1049556859 has not been paid. 9. Infringement notice 1049556859 was not entered into an infringement notice management plan. 10. The infringement notice offence number 1049556859 has not been withdrawn. 11. The offence involved vehicle ACT registration number YPM58U. 12. An illegal user declaration, a known user declaration, a sold vehicle declaration or an unknown user declaration was not lodged with the administering authority in relation to the offence for Infringement notice 1049556859. Dated this 04 September 2024.

37. I have highlighted [3]-[5] and [12] of the s 56 certificate as they are important in understanding why the appellant’s claim that the prosecution failed to prove that he was the driver is incorrect.

38. Upon having been served with the infringement notice, the appellant had the obligation pursuant to s 33(1)-(2) of the Road Transport (General) Act 1999 to take all reasonable steps to identify the driver by completing an infringement notice declaration under s 26 of the Road Transport (General) Act 1999. If the appellant asserts that he was not the person who committed the offence, he is nevertheless required to complete an infringement notice declaration.

39. There was no evidence before the magistrate that the appellant did anything other than notify the authority that liability was disputed. Had he completed the declaration as required, there might have been some evidence before the magistrate to prove on the balance of probabilities that the appellant was not the person in control or possession of the vehicle at the relevant time.

40. In the absence of such evidence, the presumption in s 53AA of the Road Transport (General) Act 1999 applied. That is the very purpose for which s 53AA was enacted. It is beside the point that in a different section of the Road Transport (General) Act 1999, namely s 60, a police officer or authorised person is empowered to require a person to give the name and home address of the driver at the relevant time.

41. Section 60 of the Road Transport (General) Act 1999 makes it an offence for a person who is alleged to have committed an offence against the road transport legislation, when requested, not to give the name and home address of the driver except in the circumstances set out in s 60(2). That section creates no obligation on the administering authority to first go through the process set out in s 60 before issuing an infringement notice under s 213K of the Road Rules Regulations.

42. The earlier magistrate seems to have placed considerable reliance on s 60 when reaching her ultimate conclusion in that matter, namely that “individual in possession or control of the vehicle at the time of the offence” did not include the driver at the relevant time.

43. When the scheme of the Road Transport (General) Act 1999 as a whole is understood, it is plain that any interpretation of s 53AA to exclude the driver would lead to manifest absurdity.

44. It is trite to say that the offence was committed when the driver parked the car and thereafter it continued while the vehicle was parked there. It is also trite to observe that, at the moment when the driver parked the car, he or she was in fact the person in possession and in control of the vehicle at that time.

45. If the appellant so wished, he could have nominated the actual driver at the time the vehicle was parked. Although he disputed liability, there was never any evidence before the magistrate that the appellant had ever nominated another person as either being in possession or control of, or driving the vehicle at the relevant time.

46. In reasoning by reference to s 60 of the Road Transport (General) Act 1999 which deals with different circumstances, the magistrate who presided over the appellant’s previous parking ticket matter led herself into error.

47. I turn now to Magistrate Theakston’s reasons given in the proceedings that are the subject of this appeal, which are to be found at pages 57-58 of the transcript. Although his Honour delivered an ex tempore judgement, his reasons were careful and well-considered. I include an extract of his Honour’s reasons below: The only real question is who is responsible for that, and that is, who was the driver. There are some other issues that perhaps need to be dealt with first. I might just deal with the driver issue before I go onto the other matters. I've been provided with a copy of the transcript for the decision of Magistrate Burt in another matter involving the same defendant, and it's a Court Attendance Notice 40653 of 2023, and it appears in that decision Magistrate Burt ruled that the deeming provision at section 53AA did not include that other driver. I note she makes reference to the option to make a demand of a responsible person, or registered operator, to disclose who the driver was under section 60 of the Road Transport (General) Act, but ultimately she ruled that it was not the case that they were one and the same thing. I take a different view, and the relevant words here are 'in possession or control', and the question is, could or should or does or do those terms include that of a driver, and in determining whether that is or is not the case, I need to take into account the basics for interpreting legislation, and they include, and are described in the Legislation Act 2001, and in particular I need to take into account the context of the legislation, an interpretation that best achieves the purpose of the legislation, and I can also take into account material that may be considered in accordance with section 142 of that Act. Now, I don't think it's controversial to say that the purpose of this legislation includes, in part, a way of enforcing and providing sanctions for those who park in a manner that is not permitted, for example, someone who may park in paid parking and not pay for that parking and display a relevant ticket, and it occurs in a context where such enforcement may occur where the person who was last responsible for the vehicle may not be present with the vehicle. I also note what's been put before me is the explanatory statement in 2012 in relation to the provision of section 53AA, and at page 17 of that statement, under the heading 'Clause 20, new section 53AA', the third paragraph in particular, the description of the background and the previous section 37, and while it appears to initially talk about what was intended with that previous section, it goes on to describe the overall scheme, and I'll quote the last few sentences of that paragraph. Before I do that, I'll just note that it talks about the responsible persons for the motor vehicle and the option for them to declare who was in fact the relevant driver at the time and why there is a need for that responsible person to, perhaps in the first instance, be responsible for the offending and therefore provide them with an incentive to identify who else may have been in fact the driver of the vehicle, and I'll read from, and I quote: For camera detection offences and parking offences, some form of special statutory liability for the registered operators of vehicles is essential, as the administering authority will generally need to rely on assistance from and statutory declarations made by the registered owner/operator to identify and locate the relevant driver in the event that the responsible person for the vehicle was not the driver of the vehicle at the time. Without some form of statutory liability imposed on them for infringement notice offences committed in the vehicles registered in their name, some responsible persons may not cooperate with the administering authority in identifying and locating the actual driver. So when I read that and understand that motivation for making the responsible person the initially liable, and understand the context as well as the purpose of the Act, I am comfortable in finding that section 53AA, when it says 'in possession or control of the vehicle at the time of the offence', includes a person who is a driver of that vehicle at the time of the offence, and as I've said before, the time of the offence occurs upon parking and continues beyond that, when the vehicle remains parked.

48. The magistrate correctly articulated the relevant principles of statutory construction to be applied to the task of construing s 53AA of the Road Transport (General) Act 1999.

49. Contrary to the appellant’s submissions in this court, ss 138 and 140 of the Legislation Act 2001 (ACT) were relevant to and inform, the process of statutory construction, as too did the Explanatory Statement tabled in the Legislative Assembly when the relevant amendment was introduced as part of the Road Transport (General) Amendment Bill 2012 (ACT).

50. It is relevant to set out some of the statements made in the Explanatory Statement to the Road Transport (General) Amendment Bill 2012 as they are relevant both to the construction of s 53AA and to the appellant’s contention sought to be raised on this appeal that certain sections of the Human Rights Act 2004 had been breached.

51. The Attorney-General at the time observed at the outset that the new s 53AA was essential for the effective operation of the infringement notice scheme under the road transport legislation, particularly for camera-detected offences and parking offences where the identity of the driver may not be known to the administering authority when the infringement notices served. He then said: The Bill provides that in a prosecution in relation to an infringement notice offence served on the responsible person for a registrable vehicle, there is a rebuttable evidentiary presumption that the responsible person for that vehicle had possession or control of that vehicle at the time of the offence. This presumption is mainly relevant for offences that are detected by camera (or for parking offences) where the identity of the offender is not readily apparent. It is not relevant for infringement notice offences detected by police officers or other authorised officers where the identity of the offender is known. The responsible person will have the onus of rebutting the presumption … It recognises that in a regulatory scheme such as the driver licensing and vehicle registration scheme established under the road transport legislation, it is both fair and reasonable that the person who actually owns or operates a registrable vehicle is presumed to be in possession or control of that vehicle at any given time. The responsible person (the person who actually owns or operates the vehicle) is in the best position to provide the court with evidence about the persons who had access to the vehicle at the relevant time, and about the person’s own movements in relation to that vehicle. … The rebuttable presumption replaces a much less satisfactory provision and is considered to be the least restrictive means to achieve an effective, enforceable infringement notice scheme.

52. When proper regard is had to the statutory scheme set up in the Road Transport (General) Act 1999, it is obvious that for the purpose of s 53AA “person in possession or control” includes a driver. In most instances, the “driver” and “person in possession or control” will be the same person.

53. It is beside the point that elsewhere in the Road Transport (General) Act 1999 and for other purposes, a distinction is drawn between “person in possession or control” and “driver”. In allowing herself to be influenced by that consideration, her Honour in the earlier matter was plainly wrong.

54. Magistrate Theakston was correct in his construction of s 53AA of the Road Transport (General) Act 1999 and it was open on the basis of the evidence before him to be satisfied beyond reasonable doubt, having regard to the deeming provision in s 53AA, of all of the elements of the offence.

55. Therefore, these grounds of appeal are dismissed.

Remaining grounds of appeal

56. I turn now to consider the remaining grounds of appeal.

57. The appellant particularised the remaining grounds as complaints that the magistrate incorrectly relied on certificates pursuant to ss 56 and 72 of the Road Transport (General) Act 1999, misinterpreted statutes, incorrectly took judicial notice of certain matters, and found valid subordinate laws, namely the Road Rules Regulations and, in particular, s 213K, which were not valid because they go beyond the empowering provisions in the Road Transport (Safety and Traffic Management) Act 1999 (ACT).

58. The appellant further complained that the magistrate purported to require the appellant to prove the facts in issue necessary to establish an element of the offence, namely that the subordinate laws and statutory instruments relied upon by the Crown were valid and existed and that the magistrate was wrong in any event to find that they were valid. These complaints appear to be based on the magistrate’s findings which are set out in part below: Now, there's evidence before me by way of a number of certificates. The first is a certificate under section 72, which, on its face, is evidence that the defendant was the registered operator of the vehicle. Then there's also a certificate under section 56 that includes a number of things, and including that the responsible person for the vehicle was the defendant on the day in question. There is evidence before me, by the witness Mr Kumar, that on the day in question the vehicle in question was observed to be parking in a 30-minute ticketed car spot and there was no one in the vehicle. The car was essentially stationary, as I understand his evidence, and there was no ticket displayed on the dashboard, and in those circumstances - and there's no evidence to the contrary to that, that evidence was not challenged, as I understand it -and therefore I am comfortable to make findings beyond reasonable doubt that the vehicle had been parked where it was, it was a ticketed parking area, and that there was no current parking ticket for that area displayed correctly in or on the vehicle. … So I take a different view, and I do so with respect, in relation to Magistrate Burt's view in her earlier decision. I just note for completeness that her decision was made on 24 April 2024, so this year. So in those circumstances I am satisfied beyond reasonable doubt that the defendant was the driver at the relevant time the offence was committed, and that essentially means all the elements are established to the requisite standard. I'll just deal with some of the other objections which were raised by the defendant. The first is, as I understand it, that there was no evidence of delegations and appointments, and that is said to be relevant for establishing who may issue the certificates that have been placed before the court and who may issue the traffic infringement notice, or infringement notice, to be more precise. I note that under sections 56 and 72 of the Road Transport (General) Act 1999 the language used in those sections demonstrates that the certificate need only appear to be signed by or on behalf of the administering authority. And so that appearance, on its face, is enough to demonstrate any necessary provenance of the document, and therefore there's no need to prove that the author did in fact have the requisite powers, or if there is an option to disprove that, it's a rebuttal of the presumption that they did in fact have that power, and so therefore that issue is resolved in relation to the certificates. In relation to the traffic infringement notice, the section 56 certificate states - and there's no evidence to the contrary and it has not been challenged in a way that sets aside the relevant presumption - it states at paragraph 2: An infringement notice is served by placing the infringement notice in an envelope on the vehicle address to the responsible person. Now, when that is taken in and is accepted, and section 40 of the Legislation Act 2001 is applied, then there's a presumption of validity in relation to that infringement notice. Section 40 reads as follows: It is presumed, unless the contrary is proved, that all conditions and steps required for the making of a statutory instrument had been satisfied and carried out. So that would include the contents of that instrument, as well as who was authorised to issue the instrument. I'll move on to the next objection, and that is the validity of any instruments. Now, none of these instruments have been put before me, and perhaps are not before me, but it's been suggested that one instrument in particular did not need to be a notifiable instrument, was not notified, but on its face indicated it perhaps was a notifiable instrument. To my mind that does not affect any of the conclusions I make today.

59. After the lunch break, the magistrate clarified two matters for the appellant in response to the appellant’s specific questions. The first matter related to the issue concerning the definition in s 53 AA of the Road Transport (General) Act 1999. I have dealt with that issue previously in my reasons. The second matter related to the appellant’s submissions about the validity of the legislation and the validity of the instruments purportedly created pursuant to the legislation. I have included relevant sections of the transcript below: Mr Budd: I did talk about the notifiable instruments issue, but that wasn't my only concern as to their validity, so I wanted to - this time I assume they're not in evidence and - or, if not, I can put them into evidence, and I'd seek to say that they aren't valid for a variety of reasons. … Mr Budd: Then, your Honour in your previous reasons addressed the delegations and appointments, the statutory instruments not being before the court, but if I understand correctly, not within a regulation. So the actual offence itself, being subordinate legislation, is not before the court, and - - - His Honour: All right. So - - - Mr Budd: - - - we had submissions about it, but - - - His Honour: All right. Sorry. I didn't address that. Mr Budd: - - - you didn't say 143(2), and even then I was - - - His Honour: In fact, I'm happy to clarify those two issues for the first matter as well, if that would be useful. Mr Budd: Yes, I think that would be useful, your Honour.

60. His Honour then went on to say: Yes, thank you. Now, I made the finding of guilt. I've also given some reasons, but I'll - there's two sets of reasons I didn't cover. One was whether or not I needed to receive evidence of the actual regulation itself where the offence provision is located, and I say I do not, and I say that's a fairly fundamental principle, I do not, but if there's any need to point to a basis for that, that's at section 143 of the Evidence Act 2011. In particular, subsection (1)(b) includes a regulation, and that is that proof is not required about the provisions and coming into operation of a regulation. Now, the defendant drew a distinction between being persuaded something was real and knowing something existed, and I think, as I understood, the submission was that unless it was physically put before me then the operation of 143 - or it had no operation. But I note that subsection (2) of that section says as follows: A judge may inform himself or herself about those matters in any way the judge thinks fit. To my mind, that means I can pick up a reliable or authorised copy of the provision and read it for myself, be that on paper or on my iPad, and that's what I've done. So I'm not so concerned about that.

61. His Honour later said: I need to make a ruling about the Road Transport Road Rules Regulations 2017. Look, I think it's very, very simple. You say they're ultra vires because they exceed beyond the remit that is provided in the relevant Act. You say the relevant Act is the Road Transport and Safety Act of 1999. You point to section 33, but you also pointed to section 42. Section 42 clearly covers parking, as does the Act, and section 33 clearly covers offences. Additionally, this is the Road Transport (Safety and Traffic Management) Act. Then, if there's any doubt, the purpose of the Act is described - or objects are described at section 3 of that Act, and that includes safe, efficient and equitable road use, and I would have thought shared parking, shared by paying and limiting the time you can park, is a clear example of equitable road use. I see no issue in relation to that and therefore, not surprisingly, I guess, I find that those road rules are not ultra vires and do not extend unnecessarily beyond the scope as provided in that Act. I also note, for completeness, the road rules are based, as I understand it, on a national set of road rules that are adopted, and that's a matter of convenience, that they're put in the one place.

62. The transcript recorded the following on page 83: Mr Budd: Your Honour, on the reasons for decision, would your Honour be willing to make comment about the infringement notice offence aspect? So while the Road Transport (Safety and Traffic Management) Act, as you say, covers offences, covers parking, it doesn't cover infringement notice offences, and I think there's some issue derived by - if you could - I would be assisted by a sentence or two on that particular point. His Honour: Yes. Well, I note you raised that during your submissions. I don't see that as a condition precedent for the power. I note that that term is used, or expression is used elsewhere, in other Acts, and a process is created in the General Act in relation to infringement notices and infringement notice offences, but I don't see any reason why the powers described in the Road Transport (Safety and Traffic Management) Act should be read down to exclude traffic infringement notice offences or anything similar to that.

63. It is relevant to note that the magistrate engaged with the appellant throughout the entire hearing and gave reasons and further explanation from time to time when requested to by the appellant.

Reasons

64. As the appellant’s complaints on appeal included a general complaint that the magistrate’s reasons were inadequate and were, therefore, an invalid exercise of the court’s powers, it is necessary to restate some of the general principles.

65. As the respondent correctly submitted, there is a requirement for judicial officers to provide reasons for decision which includes those on sentence. However, it has been held that those reasons need not be exhaustive and the proper performance of the obligation to give reasons must always be assessed having regard to the environment in which that court operates, see R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383.

66. In Devenport v Garnon [2024] ACTSC 198, Taylor J fairly summarised the position at [87]: Whether delivered immediately at the end of a hearing or with some time for further consideration, the reasons of the Magistrate must be read fairly, as a whole and not painstakingly picked over with an eye overly sensitive to error. Whether ex tempore reasons or reasons after further reflection, the pressures of the Magistrates Court remain: Poidevin v Coutts [2024] ACTSC 91 at [100].

67. In this matter, the magistrate engaged with the appellant throughout the hearing and went to considerable trouble to explain to the appellant his reasons for not accepting the appellant’s arguments on many of the points raised throughout the hearing.

68. Similarly, the magistrate went to some length to ensure that he understood the appellant’s argument in relation to the material filed by the appellant upon the hearing of the second charge, namely the material contained in Exhibit D1. In fact, the magistrate dealt with that material in some depth and detail before he reached the ultimate conclusion that none of the material tendered by the appellant assisted the appellant’s argument in relation to the validity of the laws and subordinate instruments. It is evident that the magistrate understood the appellant’s arguments and the material before the court. So much is evident from the transcript at the commencement of his reasons when the magistrate said: I'll just note some key principles. The first one is the onus is clearly on the prosecution. There's no doubt about that. The standard of proof is proof beyond reasonable doubt, and I need to be satisfied beyond reasonable doubt of each of the required elements of the offence before I can find the offences proved. If I'm uncertain where the truth lies and it remains open on the evidence that the defendant did not commit the offence, then he should be given the benefit of the doubt and should be found not guilty. The defendant has a right to silence and by not giving evidence no adverse inference can be drawn against him because he exercised that right.

69. When finding the offences proved by reference to the certificates filed under ss 56 and 72 of the Road Transport (General) Act 1999, the magistrate relied on those provisions which relevantly state in part: 56 Evidentiary certificates (1) This section applies to a proceeding for an infringement notice offence. (2) A certificate that appears to be signed by or on behalf of the administering authority, and states any matter relevant to anything done or not done under this part in relation to the offence, is evidence of the matter. … 72 Certificate evidence and other evidentiary provisions (1) A certificate that appears to be signed by or on behalf of the road transport authority or the MAI commissioner, and states any of the following matters, is evidence of: (a) a matter that appears in or can be worked out from the demerit points register or driver licence register kept under the Road Transport (Driver Licensing) Act 1999; (b) a matter that appears in or can be worked out from (or does not appear in or cannot be worked out from) the registrable vehicles register kept under the Road Transport (Vehicle Registration) Act 1999; (c) a matter that appears in, or can be worked out from a person’s interlock data record under the Road Transport (Driver Licensing) Regulation 2000; (d) whether a stated vehicle was or was not the nominated vehicle for a stated person under the Road Transport (Driver Licensing) Regulation 2000, section 73X (Nomination of vehicle); (e) whether a stated nominated vehicle for a stated person under the Road Transport (Driver Licensing) Regulation 2000, section 73X (Nomination of vehicle) had or did not have a fitted interlock; (f) whether a stated person had or did not have an interlock exemption with or without conditions, under the Road Transport (Driver Licensing) Regulation 2000, division 3A.3 (Interlock exemptions); (g) a matter that appears in, or can be worked out from, the MAI insurance licence register kept under the Motor Accident Injuries Act 2019; (h) a matter that appears in or can be worked out from any other record kept by the authority under the road transport legislation. Note MAI commissioner—see the Motor Accident Injuries Act 2019, dictionary. …

70. His Honour correctly observed that he was bound to accept the certificates as proof of the matters therein stated in the absence of any evidence from the appellant to challenge it. No evidence was presented by the appellant to this effect.

71. The plain text of ss 56(2) and 72(1) of the Road Transport (General) Act 1999 requires that the certificates only appear to be signed by the road traffic authority.

72. Contrary to the appellant’s argument, s 40 of the Legislation Act 2001 and ss 143-144 of the Evidence Act 2011 (ACT) were relevant to determining the validity of the relevant subordinate laws and statutory instruments.

73. Once again, in the course of argument the magistrate had gone to some considerable lengths to explain this to the appellant, evident on page 26 of the transcript: Okay. Look, I'm against you on this, and I might just explain why, and there's different ways to try and conceptualise this, but maybe as a three-tier process; and starting from the bottom, there's words said in court, there's words contained on documents, there's documents themselves, and that sort of describes - so there's material that may be physically before the court in some form, then there's - sitting above that is evidence, and that's material that's been admitted as evidence. So, for example, when someone tenders something, they're trying to move from the first stage to the second stage, into the bucket of evidence, and evidence is just what's said in the witness box or things contained on papers, and it includes certificates, and that's what the evidence is, and there is either evidence or there's no evidence. So it's not uncommon for someone to say, 'I disagree with what they say, but I've got nothing to add.' For example - we saw this yesterday - someone said something, and the other person says, 'I don't think that's right, but I just don't know. So the 'I don't know' is not evidence. With me so far? And then the next level up is facts, as to what in fact occurred, and those facts are what's required to be established, either indirectly or directly, for the purpose of the elements of the offence. It's my understanding that section 56 provides the facility for a certificate to be put before the court, and there's no requirement to prove its provenance, it just needs to be prove - or on its face, if it appears like it's been issued appropriately, I can accept it, and I can accept it for the purpose of the contents being evidence as to what they say. In the absence of any other evidence, notwithstanding a challenge from one side, saying, 'Don't accept this, please,' that's not rebuttable evidence, it's just a challenge without any evidence. So, in those circumstances, not only can I accept the section 56 certificate, I must accept the contents of it, in the absence of any rebuttable evidence.

74. It was carefully explained to the appellant that if he wished to challenge any of the instruments he challenged, he needed to have subpoenaed the material and provided the relevant evidence. The absence of such material meant the presumptions in the relevant sections of both Acts applied.

75. When the magistrate’s reasons as a whole are considered, it is fair to say that the magistrate, although delivering ex tempore reasons, carefully and comprehensively dealt with all of the submissions and arguments put by the appellant in a way which was readily understandable. There was no error in the magistrate’s construction of the relevant sections. He approached that task in accordance with authority.

Proposed amended grounds of appeal

76. The appellant’s proposed amended grounds of appeal are without merit.

77. The legislative scheme relied on to establish the appellant’s guilt, is not inconsistent with the independence and impartiality of the Magistrates Court such as to render it invalid in accordance with the principle in Kable v the Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51.

78. Section 74 of the Road Transport (General) Act 1999 provides the power for an offence against the road transport legislation to be prosecuted summarily. The scheme implemented under the legislation provides for a prosecution process which is far from a “rubber stamp to a legislative process”.

79. The appellant was afforded a fair trial. He entered a plea of not guilty and was able to present his defence, cross-examine witnesses and make extensive and nuanced submissions on all aspects of the case.

80. The same reasons apply to the complaint that the trial and sentencing process contravened the Human Rights Act 2004. There have been no breaches of ss 8, 21-22, and 30 of the Human Rights Act 2004. The appellant, as an accused, was presumed innocent by the magistrate until his guilt was proved on the evidence according to law in accordance with s 22(1) of the Human Rights Act 2004. The Sentence Appeal

81. As to the sentence appeal, the appellant outlined three substantive issues in his written submissions that went to errors in sentencing. They are: A: Considered irrelevant material. B: Failed to consider relevant material. C: Jurisdictional error (fair hearing rule).

82. Although the magistrate proceeded to deliver ex tempore reasons for the sentence imposed, I observe that the appellant was afforded ample opportunity to put forward any mitigating circumstances and submissions as to the appropriate sentence.

83. The prosecution submitted that a fine should be imposed and convictions recorded. The appellant sought orders that no convictions be recorded and made quite extensive submissions as to why, including that the fact that he has ADHD was relevant to why he committed the offences.

84. After hearing from the appellant, the magistrate said: I'll give an indication and then I will just provide some very brief reasons. In relation to each of these three matters for sentence now, two which followed findings of guilt by me and the third, which was a slightly different offence, that involved a plea of guilty today, the day of the hearing, I will impose those amounts that have been described as the infringement notice amounts, plus the reminder fee. Look, while I accept I could impose more or less, I would have thought they're an appropriate benchmark. The defendant has a right to challenge the evidence, and he certainly did everything he could in relation to these first two matters today. Having said that, at least the evidence was dealt with in a very efficient way. It was really just the submissions that involve some detail and some complexity that took some time. The offending - I will record convictions. I note that there's an option for me not to under section 17 of the Crimes (Sentencing) Act. There are three mandatory considerations, namely the defendant's background, which weighs in favour of that; the circumstances of the offending, which is neutral; and any extenuating circumstances. Next to that is the fact that there was essentially no plea in relation to the first two, and a plea very, very late in relation to the last, as we come up to 4.00 pm on the day of the hearing. To my mind, these offences, while they do not involve issues of safety, they do involve issues of compliance and the equitable use of the road and parking areas are something that should be encouraged, and the fines do exactly that. I think I would send a wrong message to this defendant, and to others, if I were to not record a conviction, and I note that were I to not record a conviction, the only penalty that could follow would be a good behaviour order. The alternative to that I dismiss the charge outright with no penalty and no sanction, and that, to my mind, would be grossly inappropriate for these matters. I take into account the challenges the defendant described he has in relation to his children. I guess he's on his own at the moment with the children when they're in his care; three children under the age of seven at the time with issues of ADHD. I find it surprising to hear the submission that it was simply too hard to pay the amount and that it was too difficult to move three children through the city, taking into account children can vary, and as can parenting ability to manage children can vary as well. I find it very difficult to accept that an adult would have trouble moving children across a road or two for the purpose of an appointment in town, and what it appears to me is really it was just inconvenient to worrying about paying the amount, rather than it simply being too hard, and I note that the defendant's appeared in court today, engaged in some very complicated and nuanced arguments, and he clearly has an ability to do so, and I would be surprised to - I find it difficult to accept that he simply did not have the capacity to deal with children in a way that would allow him also to pay for parking.

85. His Honour explained clearly why he rejected most of the appellant’s submissions and why he needed to record convictions. There was no error in the magistrate’s approach. His Honour did not take into account irrelevant considerations, imposed moderate fines and nothing further was required. Application to adduce fresh evidence

86. As to the application to adduce fresh evidence on appeal against sentence in the form of expert evidence concerning the condition of ADHD, this is not fresh evidence. The proposed evidence could have been called at the time of sentencing. It would not in any event have added to the appellant’s own submissions as to the impact on him of ADHD. The appellant proffered no explanation for why it was not called at first instance.

87. I would add for the sake of completeness and in the context of the appeal against conviction, that there is no basis to admit the “fresh evidence” in the form of the two evidentiary certificates executed by Humpty Dumpty on 4 June 2025. In all of the circumstances, the tendering of those two certificates by the appellant amounts to nothing more than a frivolous and vexatious attempt to challenge the convictions.

88. As there is no merit in any of the grounds of appeal argued by the appellant, I make the following orders.

Orders

89. The orders of the Court are: (1) Permission is refused for the appellant to amend the notice of appeal. (2) The application to adduce further evidence is refused. (3) The appeal against conviction and sentence is dismissed.

I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 29 May 2026