Saunders v Bowman [2008] QCA 112

Court of Appeal (Qld)|2008-05-09|Before: de Jersey CJ, Keane JA and Douglas JSeparate reasons for judgment of, each member of the Court, each concurring as to the order made

**[1] de JERSEY CJ: 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.

[2] 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.

[3] 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."

[4] 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.

**[5] At the hearing of the charge before the learned Magistrate, Mr Saunders established that he was not driving the vehicle at the time of the offence. He failed, however, to satisfy the Magistrate of the other matters necessary to avoid the deeming effect of s 114(1) of the TORUM.

[6] In relation to the notification issue, Mr Saunders provided police with a statutory declaration which he swore: "I have asked everyone in the house but no-one has said that they were driving at the time." This statutory declaration was accompanied by a letter in which Mr Saunders wrote: "I was not driving at the time and I don't know who was."

[7] At the hearing, Mr Saunders gave similar evidence of his inquiries and he also gave evidence that he left the keys of the vehicle on the kitchen bench in his house when he left for work.

[8] The Magistrate did not accept that Mr Saunders had shown that he had acted with the requisite degree of diligence to ascertain the name of the driver of the vehicle at the time of the offence, or that he had exercised reasonable control over the vehicle's use and had in place a reasonable system for ascertaining the identity of the driver.

[9] Mr Saunders was convicted and fined $150 and $66.30 for costs.

[10] Mr Saunders appealed to the District Court. The learned judge dismissed his appeal on the basis that the Magistrate was clearly correct in holding that Mr Saunders had not made out the elements of the defence provided by s 114(3) and (6) of the TORUM.

[11] Mr Saunders now seeks leave to appeal to this Court from the decision of the District Court. Leave to appeal is necessary by reason of the provisions of s 118 of the District Court of Queensland Act 1967 (Qld).

[12] In this case, there is no reason to grant leave to appeal. Mr Saunders does not seem to agree with the legislature's evident concern to ensure that the owners of motor vehicles used to commit offences are held responsible for their use if the person directly responsible for the offence cannot be made subject to the law's sanctions. His particular concern seems to be that s 114(1) deems a person, who was not driving at the time an offence was committed, to have committed the offence. But there can be no doubt that Parliament has the power to legislate in this way. Mr Saunders' complaint is really that it is inappropriate for Parliament to do so.

[13] Whether or not one shares Mr Saunders' views as to how Parliament should go about exercising its power to make laws, it is abundantly clear that he failed to bring himself within s 114(3) and (6) of the TORUM. On Mr Saunder's evidence, he could not have hoped to satisfy the Magistrate that he had given the notification required by s 114(3) or that he had exercised reasonable diligence to ascertain the name and address of the driver, or that he exercised reasonable control over the vehicle's use.

[14] On his evidence, it is not even clear that he troubled to ask each of the people "in the house" directly whether he or she was driving, or what their response was. There was simply no evidence that he exercised any control at all, much less reasonable control, over the use of the vehicle when he was away from home; and the fact that he was not able to say who was driving is itself suggestive of the absence of reasonable control over the vehicle's use on his part and of the absence of any reasonable system for ascertaining the identity of the driver.

[15] Accordingly, Mr Saunders' conviction was inevitable. There is no prospect that an appeal would succeed if leave were granted.

[16] I would refuse the application for leave to appeal.

[17] DOUGLAS J: The learned District Court judge hearing the appeal to that Court made it perfectly clear, particularly in paras [10] to [15] of his reasons, why that appeal should have been dismissed. The applicant, who appeared in person before the District Court and before this Court, did not come to grips at all with the task of showing how his Honour's reasoning was wrong.

[18] I agree also with the discussion of the issues by Keane JA and the order proposed by his Honour.**

Operations (Road Use Management) Act 1995

Court of Queensland Act 1967

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