Dixon v LeKich [2010] QCA 213

The photographs of the vehicle were the sole basis of the evidence in a disputed speed camera trial. On appeal McGill J dismissed the prosecution on the basis it was inadmissible because the delegation to prove the otherwise hearsay evidence of the photographs had not been proved.  What had been provided was a certificate by the person stated to the delegated officer, stating he was the delegated officer, rather than a certificate from delegator, in this instance the Commissioner of Police.

On appeal, Fraser JA, with whom McMurdo P and White JA concurred, adopted McGill’s reasoning:

[27] The applicant referred also to other cases, but in none of the cited cases was the presumption applied to permit a party to take advantage of a statutory provision facilitating the admission of evidence in legal proceedings where that party had omitted to prove a fact the proof of which was necessary under the statute to render the evidence admissible. The consequences of a delegation by the Commissioner are by no means insignificant. It arms a police officer with power to provide prima facie proof of an offence merely by signing a certificate which s 120(2) of TORUM otherwise requires to be signed by the Commissioner. It does not seem unduly pedantic to insist upon proof of such a delegation where, as the primary judge explained, the applicant could have taken advantage of the simple mode of proof which the legislature has provided in the Acts Interpretation Act 1954 (Qld). Subsection 27A(13) of that Act provides that writing purporting to be a delegation is evidence of the delegation. Pursuant to ss 27A(14) and (15) a certificate signed by the delegator is evidence of anything stated in the certificate in relation to the delegation and a document purporting to be such a certificate is taken to be one unless the contrary is established. Section 59(c) of TORUM provides that a signature purporting to be the signature of the Commissioner is evidence that it was that signature. Accordingly, the applicant could have proved the delegation simply by tendering a certificate purporting to be signed by the Commissioner. The applicant omitted to do so. In the absence of any admissible evidence that there was such a delegation, the photographs were inadmissible.

[36] By ss 27A(13), (14) and (15) of the Acts Interpretation Act 1954 (Qld) the legislature has facilitated proof of a delegation by unambiguous language which renders a certificate by a delegator admissible in evidence. If the legislature had intended to produce the rather more surprising result, that a person who claimed to be the object of a delegation could prove that fact merely by certifying that it was so, one would expect to see clear statutory words to that effect. I do not accept that s 27A(3D) provides such a rule.

It is a timely reminder of the need to exercise care when considering the exemptions of the hearsay rule.

Brisbane Barrister – David Cormack.

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