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Wednesday, 1 April 2009

Operator-onus offences and licence suspension

Last week in Dolheguy v Becker [2009] VSC 106 the Supreme Court decided a Court was not required to suspend the licence of an owner of a speeding car if it wasn't satisfied he was the actual driver.

Barrister Sean Hardy has already successfully used this judgment at Dandenong.

The facts


On 4 July 2006 a speed camera snapped Mr Becker's car doing 136 km/h in a 100 km/h zone.

Section 66 of the Road Safety Act designates certain offences as owner-onus (later amended to operator-onus offences), including speeding.

On 4 July 2006, section 66 read:

66 Offences detected by a photographic detection device

(1) If —
(a) a prescribed offence occurs; and

(b) the offence is detected by a prescribed detection device or by a prescribed process —
the person who at the time of the occurrence of the offence is the owner of the motor vehicle ... involved in the offence is guilty of an offence as if that person were the driver of the motor vehicle ... at the time of the offence unless the court is satisfied that the motor vehicle ... was a stolen motor vehicle ... or that the number plates displayed on the motor vehicle ... were stolen.

...

(3) Notwithstanding anything in sub-section (1) ... an owner of a motor vehicle ... is not by virtue of sub-section (1) guilty of an offence if —
(a) before or within 28 days after the service on the owner of a summons in respect of the offence, the owner supplies to an enforcement official in a sworn statement in writing or in a statutory declaration the name and address of the person who was driving the motor vehicle ... at the relevant time; ...
...

(5) In this section, “owner” means —
(a) the person in whose name the motor vehicle ... is registered at the time of the offence ...
...

(6) For the avoidance of doubt, the owner of a motor vehicle ... who, by virtue of sub-section (1), is taken to be guilty of an offence is liable to the same penalties and subject to the same consequences to which he or she would have been liable and subject had he or she been the actual driver at the time of the occurrence of the offence.
(Section 66 was later amended, effective from 1 July 2007, but the amended section only applies to offences committed after 1 July 2007.)

Schedule 5 of the Road Safety Act provides that speeding between 35 and 45 km/h over the speed limit requires a minimum of 6 months licence suspension for the driver.

Section 28(1) of the Road Safety Act requires a Court to suspend the licence of a speeding driver for the minimum period of time specified in Schedule 5.

The issue


But...s 28(6) provides:
(6) Subsection (1) does not apply to an offence to which section 66 applies unless the court is satisfied that the person convicted or found guilty of the offence was the actual driver of the motor vehicle at the time of the offence.
Both the Magistrates' and County Court accepted Mr Becker's argument that s 28(6) meant the Court was not required to suspend his licence unless satisfied he was the actual driver.

The prosecution appealed to the Supreme Court.

The prosecution lost!

The reasoning


You'll find it easier to just read what the Supreme Court said, rather than read my paraphrase of it. Ultimately, I think it boils down to this:

The effect of s 28(6) is that where an owner of a vehicle is convicted of a speeding offence on the basis of s 66(1), the owner’s licence cannot be suspended under s 28(1) unless the prosecution establishes that the owner was the actual driver: Dolheguy v Becker [2009] VSC 106 at [23].

As I mentioned above, s 66 was amended. Similar provisions imposing operator-liability are now found in s 84BC of the Act.

I initially thought s 84BC(4) would overcome the effect of Dolheguy v Becker. But after re-reading the decision, I think this provision is substantially the same as the old sub-s 66(1) and (6). And that means the reasoning in Dolheguy v Becker applies to our current cases.

edit

I came across some information a colleague gave me about this topic, many moons ago.

Section 66(6) of the Road Safety Act was inserted by the Transport Legislation (Amendment) Act 2004 s 32.

The explanatory memorandum explains its purpose:

Clause 32 inserts a new section 66(6) in the Roads Safety Act 1986. This is one of the amendments that arises out of the decision referred to in Parson's Case, which is referred to in the notes to clause 27. The new section 66(6) clarifies that the registered operator of a motor vehicle is liable for penalties and other consequences (including demerit points) flowing from offences detected by photographic detection devices and involving a vehicle registered in the operator's name. This reflects the "owner onus" principle, namely, that the registered operator of a vehicle must take full responsibility for a traffic camera, parking or tolling offence involving his or her vehicle unless and until he or she nominates the actual driver.

That case was Roads Corporation v Magistrates' Court; Parsons & Holloway (2004) 42 MVR 105; [2004] VSC 384.

You might find it a little difficult to read. I know I did. Even the presiding judge noted the complexity of the legislative provisions involved.

[38] The legislation and regulations are extremely complex and difficult to understand and apply. The odd anomaly is to be expected. It is difficult to discern and articulate all the underlying purposes and objectives of the legislation. I venture to suggest, however, that the demerit system was intended to discourage drivers from breaching the law but was also intended to punish and remove from the roads those who by their conduct have incurred 12 demerit points in the prescribed period. It is also reasonably clear that various devices have been employed to achieve the efficiencies required because of the sheer volume of potential infringements and court business such as the photographic detection system and the PERIN system. But efficiency is a means to an end, not an end in itself and those efficient systems will on occasions result in injustices. The suspension of licences, in particular, can be a very serious matter for the individuals concerned. Ultimately, however, it is against the actual driver of the vehicle committing the offences under the Act that it is intended to operate...(emphasis added)

So it seems more likely that s 66(6) — and by implication, it's current equivalent in s 84BC — was intended to attribute liability to owners.

But Parsons considered licence suspensions from accrued demerit points or speed-camera fines. Dolheguy v Becker dealt with licence suspension imposed by a court under s 28.

Even though Parsons wasn't cited in Dolheguy v Becker, I don't think it would have made any difference, because s 28(6) is quite specific to court-ordered suspensions. In any event, Parliament intends amending the legislation again to overcome Dolheguy v Becker.

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