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District Court 13 December 2023

R v Doumit

[2023] NSWDC 558

Traffic & driving
CRIMINAL LAW APPEALS AND REVIEWS APPEAL AGAINST LOCAL COURT CONVICTIONS ROAD TRAFFIC OFFENCES

Citation: R v Doumit [2023] NSWDC 558
Court: District Court of New South Wales
Date: 13 December 2023
Judge(s): Abadee DCJ

Background

The appellant was convicted in the Mount Druitt Local Court on 1 August 2023 of four camera-detected road transport offences: proceeding through a red light on 9 October 2020, two counts of exceeding the speed limit by less than 10km/h (one on 9 October and one on 28 October 2020), and one count of exceeding the speed limit by more than 10km/h on 9 October 2020. The appellant had been nominated as the driver by the registered responsible person for the vehicle, a man described as his cousin.

The appellant's sole defence at every stage was that he was not the driver. In the Local Court he was unrepresented and used an interpreter. He did not contest that the relevant road rules had been breached; his position was simply that someone else was at the wheel.

On appeal to the District Court, the appellant's explanations shifted noticeably. In the Local Court he suggested he could not have committed the offences on 9 October 2020 because he had just returned from his honeymoon. In his Notice of Appeal he stated he had been hospitalised for back surgery. At the appeal hearing, from the bar table, he offered yet another version: that he married on 10 October 2020 and was not driving in Australia at the relevant time.

  • Whether the appellant could establish, under s 187(b) of the Road Transport Act 2013 (NSW), that he did not know and could not with reasonable diligence have ascertained the details of the person who was in charge of the vehicle at the time each offence occurred.
  • Whether the prosecution had proved the offences through the statutory declaration evidence and certificates admitted under ss 137, 138(2) and 257 of the Road Transport Act 2013 (NSW).
  • Whether the Local Court Magistrate erred in convicting the appellant, applying the principles applicable to conviction appeals from the Local Court on the transcript and exhibits.

Decision

Abadee DCJ began by restating the principles governing conviction appeals from the Local Court to the District Court. The appeal is a rehearing on the transcript and exhibits, not a fresh trial. The appellant must demonstrate error, but that requirement does not reverse the onus of proof: the prosecution must still establish guilt beyond reasonable doubt, and the appeal must be upheld unless the appellate judge is satisfied of guilt to that standard.

The Court identified the shifting and inconsistent explanations offered by the appellant as a central difficulty. The hospitalisation story appeared for the first time in the Notice of Appeal and had never been raised before the Magistrate. The wedding date explanation emerged from the bar table on appeal and amounted to fresh evidence. These inconsistencies, taken together with the close relationship between the appellant and the Saba family (demonstrated, among other things, by the appellant's own account of having supplied his driver's licence to a member of that family), led the Court to reject the appellant's version of events.

The Court found two independent routes to the same conclusion. First, rejecting the appellant's evidence made it straightforward to find that he could not satisfy the s 187(b) defence: he had not proved he was unable, through reasonable diligence, to ascertain who was in charge of the vehicle. Second, the prosecution's evidence independently established the offending. The statutory declarations constituted prima facie proof under s 190(1)(b) of the Act, and the Magistrate's favourable credit findings about the responsible person, Mr Saba, were not glaringly inconsistent with any other established facts.

The appeal against all four convictions was dismissed.

Orders Made

  • The appeal against each of the four convictions recorded in the Mount Druitt Local Court on 1 August 2023 is dismissed.

Key Takeaways

  • Under the Road Transport Act 2013 (NSW), a person nominated as the driver of a camera-detected offence bears the onus of satisfying the court, under s 187(b), that they did not know and could not with reasonable diligence have ascertained who was in charge of the vehicle. Simply denying being the driver is insufficient without more.

  • A statutory declaration made in connection with a s 186 nomination constitutes prima facie evidence of the facts it asserts, including that the nominated person was the driver at the relevant time.

  • In dismissing the appeal, the District Court confirmed that where a defendant offers materially inconsistent explanations across different stages of proceedings, those inconsistencies are relevant to the assessment of credibility and to whether a statutory defence has been made out.

  • The applicable appellate framework requires the District Court to form its own view of guilt on the transcript and exhibits, but it does not conduct a free-standing review of all evidence in the absence of submissions from the parties, consistent with Lunney v DPP (2021) 105 NSWLR 236.

  • Credit findings by a magistrate who heard and saw the witnesses remain a relevant consideration on appeal, though the appellate court will focus particularly on whether disputed evidence is consistent with incontrovertible or undisputed facts, following McNab v DPP (NSW) (2021) 106 NSWLR 430.

Legislation and Cases Referenced

Legislation:
- Road Rules 2014 (NSW), rules 20 and 59
- Road Transport Act 2013 (NSW), ss 10, 137, 138, 184, 185, 186, 187, 190, 257
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)

Cases:
- R v Scott [2023] NSWDC 271
- Lunney v DPP (2021) 105 NSWLR 236
- McNab v DPP (NSW) (2021) 106 NSWLR 430