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District Court 2 March 2010

Angela Liati v D.P.P

[2010] NSWDC 80

Traffic & driving
CRIMINAL LAW CAMERA DETECTED SPEEDING OFFENCES DRIVER SAID TO BE NOW DECEASED

Citation: Angela Liati v D.P.P [2010] NSWDC 80
Court: District Court of New South Wales
Date: 2 March 2010
Judge(s): Nicholson SC DCJ

Background

The appellant was the registered owner of a 2005 Toyota Avalon and faced four camera-detected speeding offences recorded between October and December 2006 at the Eastern Distributor and Henry Lawson Drive. She had been convicted of all four offences by Magistrate Farnan in the Local Court at Sutherland on 15 September 2009. She appeared in the District Court as a self-represented litigant.

The appellant's defence was that she was not driving on any of the four occasions. She nominated her uncle, Pangiotis Panousis, as the driver, supporting this claim with a letter from his wife, a doctor's letter, and a funeral brochure. Mr Panousis had passed away in 2008 at the age of 79, making his evidence unavailable.

The appellant also argued that she had sent statutory declarations to the Roads and Traffic Authority (RTA) nominating the alternative driver, but that the RTA had lost the documents. She further claimed she had not received any of the four penalty notices.

  • Whether the appellant had complied with the statutory declaration requirements under s 179 of the Road Transport (General) Act 2005 to avoid liability as the registered responsible person for the vehicle
  • Whether the appellant could establish that she had not received the penalty notices served by post
  • Whether, in the absence of a compliant statutory declaration, the statutory deeming provision operated to make the appellant guilty of the offences

Decision

The court conducted a rehearing on the evidence from the Local Court transcripts and additional documents. It found the appellant's account fundamentally unreliable in several respects. The claim that all four penalty notices went missing was described as implausible: the court accepted that one could be lost, possibly two, but rejected the proposition that four separate notices sent to two different addresses all failed to arrive. Similarly, the claim that all statutory declarations sent to the RTA were lost was treated with significant scepticism.

The appellant's evidence contained internal contradictions. She initially claimed to have sent the statutory declarations all together, but later evidence indicated she sent the first one in October 2006, before the later offences had even occurred. She was also confronted in cross-examination with a statutory declaration in the RTA's possession in which she had nominated a different person altogether as the driver on the latter two occasions, casting further doubt on her account.

The court found that the conditions for exemption under s 179(8) of the Road Transport (General) Act 2005 were not satisfied. That subsection provides that a responsible person is not guilty of a camera-recorded offence if they either comply with the declaration requirements or satisfy the authorised officer that they did not know and could not with reasonable diligence have ascertained the driver's identity. The court was satisfied beyond reasonable doubt that the appellant had not complied with the declaration requirements, and that she knew, or could with reasonable diligence have ascertained, the identity and address of the person she claimed was driving.

The court expressly noted that it was not required to determine whether the appellant or her uncle was actually driving on the relevant dates. The statutory deeming provision in s 179(1) operated to make the appellant guilty by virtue of her failure to satisfy the exemption conditions, regardless of who was behind the wheel.

Orders Made

  • All four conviction appeals dismissed
  • Convictions confirmed
  • Penalties confirmed
  • Court costs confirmed

Key Takeaways

  • Under s 179 of the Road Transport (General) Act 2005, a registered responsible person is deemed guilty of a camera-detected offence unless they satisfy specific statutory exemption conditions, regardless of whether they were actually driving.
  • The District Court confirmed that the exemption under s 179(8) requires the responsible person to either file a compliant statutory declaration nominating the driver or establish that the driver's identity was genuinely unknown and not ascertainable with reasonable diligence.
  • Where a defendant claims never to have received multiple penalty notices sent to multiple addresses, a court is entitled to reject that claim as implausible, particularly where no supporting evidence exists.
  • In dismissing the appeal, the court emphasised that a conviction under the deeming provision does not require any finding as to who was actually driving the vehicle at the time of the offence.
  • Inconsistencies in a defendant's account, including contradictory evidence about when and how statutory declarations were sent and different nominees identified in different documents, are relevant to the court's assessment of whether the exemption conditions have been met.

Legislation and Cases Referenced

Legislation:
- Road Transport (General) Act 2005 (NSW), s 179 (the core deeming and exemption provisions)
- Motor Accidents Compensation Act (NSW) (referenced in passing)
- Fines Act (NSW), s 51 (referenced in relation to State Debt Recovery Office notices)

Cases: No cases were cited in the judgment.