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QLD Infringement Notice question

Discussion in 'Politics, Laws, Government & Insurance' started by ryangus, Sep 6, 2012.

  1. If I received an infringement notice and my date of birth on it was incorrect, would this give any avenue for getting out of it?

  2. doubt it...they still have your name blah blah blah...could also mean that the fine is passed on to the poor sod that has the same name as you and a nearby birthday (has happened to me before and took me forever to fight it)

    just cop it bud....or appeal it....dont try and do the dodgey way of things
  3. http://www.police.qld.gov.au/rti/published/policies/traffic-manual/08/ch_08_pt1.htm

    Section 8.9.1 is interesting. Still don't think it helps, considering:

    "In making a determination as to whether or not to cancel/waive an Infringement Notice, consideration should be given as to whether a prosecution action instigated before a court would be likely to fail due to the apparent defect in the Infringement Notice subject of the determination."​
  4. highly doubt it, your names correct.. it was your bike.. it was you riding it.

    a mistake in your DOB is hardly a strong enough reason for the judge to let you get away with it.
  5. May or may not apply elsewhere but in Vic if you notify them of any incorrect details they can withdraw the original fine and re write a new one with the correct details.. I would think it would be similar around Aus... So I'd think you'd be out of luck.. Happy to be proven wrong though :)
  6. do share....
  7. In answer to your question of whether an incorrect DOB provides you with "any avenue of for getting out of it", the answer is 'No'.

    If having an incorrect DOB causes you emotional distress, please call the number on your TIN so they can resolve the matter by issuing a replacement with correct DOB. Legislation tells you the details your TIN must include although notices include more details then is required by law. If required information has been left blank, or are otherwise meaningless such as offence date, date of notice, alleged offence etc the TIN may be defective to the point as to render it invalid. Refer to the case below as an example of a case being run to this point.

    Alternatively, refer to whatever state you are in to discover DOB is not a prescribed particular for a traffic infringement notice.

    Prescribed particulars of traffic infringement notice

    (1) For the purposes of section 88(2) of the Act, the prescribed particulars of a traffic infringement notice are—

    • the date on which the notice is issued;
    • the number of the notice;
    • the name and address of the person alleged to have committed the infringement or, if the notice is issued in respect of an offence referred to in regulation 301, the words "The
      Owner"; and
    • the date, approximate time and place of the alleged traffic infringement;
    • if the alleged traffic infringement arises out of driving or being in charge of a motor
      vehicle or trailer, the registered number or other identification of the motor vehicle or trailer;
    • if the traffic infringement notice relates to an alleged offence prescribed by regulation 301, it states that it is an infringement notice in relation to an offence detected by an automatic detection device; and
    • if the traffic infringement notice relates to an alleged drink-driving infringement or excessive speed infringement—
      (i) it states that it is issued in respect of a drink-driving infringement or excessive speed infringement (as the case requires);
      (ii) it states that unless a notice of objection is received at the address specified in the notice within 28 days after service of the notice, the notice will take effect as a conviction and will result in cancellation or suspension of the licence or permit of the person on whom it is served;
      (iii) in the case of an alleged drink-driving infringement, it specifies the concentration of alcohol alleged to have been present in the blood of the person on whom it is served;
      (iv) in the case of an alleged excessive speed infringement, it specifies the speed at which the motor vehicle is alleged to have been driven and the permitted speed;
    • the nature, and a brief description, of the alleged traffic infringement;
    • the infringement penalty for the alleged traffic infringement;
    • the manner in which the infringement penalty may be paid;
    • the time within which the infringement penalty may be paid;
    • a statement that if the infringement penalty is paid before the end of the time specified in the notice, the matter will not be brought before the Magistrates' Court unless the notice is withdrawn within 28 days after the date on which it was served;
    • the name and location of the member of the police force, officer of the Corporation, officer of the Department of Infrastructure or other person authorised in accordance with section 88(1) of the Act who issued the notice;
    • if the notice is issued in respect of an offence prescribed in regulation 301, a statement that a copy of the image or message produced by an automatic detection device of the alleged traffic infringement may be inspected or purchased and the manner in which the inspection or purchase may be arranged;
    • if the notice is issued in respect of a drink-driving infringement or an excessive speed infringement under section 89A of the Act, the address of the person to whom a notice of objection is to be sent.

    (2) An infringement notice issued in respect of a drink driving infringement or excessive speed infringement under section 89A of the Act may be accompanied by—
    • a notice setting out in summary form—
      (i) the consequences of paying or failing to pay the infringement penalty; and
      (ii) the consequences of giving or failing to give a notice of objection; and
    • a form of notice of objection.



    Nathan J.


    10 December 2003

    30 January 2004

    IN THE MATTER of an Appeal on a Question of law pursuant to s.92 Magistrates' Court Act 1989



    1. The Respondent, drove or rather hurtled his car along Belato Road, Frankston on 1 March 2003 at a speed in excess of 150 kilometres per hour. It was a 90 kilometre per hour zone. He was intercepted by police who conducted a licence check. That check revealed the Respondent had received a previous Traffic Infringement Notice (TIN) on 10 October 2002 also for driving at an excessive speed. For the October 2002 offence, which he did not contest, the Respondent was penalised by having his licence suspended for six months and was fined $430. He paid the fine on 17 January 2003. It appears he did so after he received a warning letter, rather than on the basis of the TIN. The TIN contained notification that after 28 days from its issue, his licence would be suspended for six months, unless he contested the matter by lodging a Notice of Objection. He did not do so.
    2. A police member asked the Respondent why he was driving when his licence was suspended. The Respondent replied he was not aware that he had lost it. He was charged amongst other matters, with driving when his authorisation to do so was suspended. The hearing of that information relating to the events in March 2003 proceeded before a magistrate at Frankston on 30 July 2003. The information was dismissed on the ground that the October 2002 TIN was invalid. The invalidity being that it did not comply with Regulation 603 made pursuant to the Road Safety Act 1986 (the Act) in that the Notice of Objection (N.o_O.) printed on the reverse side of the TIN did not contain the name and address of the person to whom the N.o_O. was to be sent. I consider the magistrate was correct. The Respondent was not disqualified from driving in March 2003 when it was alleged he was. The TIN relating to the October 2002 offences did not comply with the terms of the Act and its Regulations. It appears that generally many infringement notices are defective. As TINs are one of a variety of "Infringement Notices" and N.o_O.s inure to other pieces of legislation such as the Liquor Control Act and the Firearms Act, the defects contained in them may have wider implications (see paragraph 24) but I restrict myself to the Road Safety Act.
    3. I turn now to the reasons for the above conclusion. The Act establishes a scheme where alleged breaches, which are admitted or not tested by the offender attract the automatic imposition of pre-determined penalties. An essential ingredient of this system is the mechanism which allows the person charged to challenge both the commission of the offence and/or the pre-determined penalty. Notices of Objection which are also titled "Application to Appear in Court" may be lodged. When a N.o_O. is lodged access to the judicial system is available and preserved. So much is an inherent right of any citizen in a free and democratic society. The absolute right of the citizen to test and challenge the organs of governmental power such as the Police Service, is one of the virtues of our system of justice. In the continental systems it is referred to as détournement de pouvoir, loosely translated as "the right to challenge the exercise of State power". The Road Safety Act falls within this rubric, and the common law's enshrinement of the rights of the individual.
    4. The seriousness of the consequences of driving whilst a licence is suspended is underscored by the Act s.30, viz, "a person must not drive a motor vehicle ... while the authorisation granted to him or her ... is suspended ... penalty for a first offence 30 penalty units or imprisonment for four months, for a subsequent offence imprisonment of not less than one month or more than two years". Accordingly, the Act and its Regulations, when interpreted, should take into account, amongst other things the severe consequences of breach. Similarly, as the Act allows an objection process and judicial determination, that access should not be impeded by N.o_O.s which are obscure, ambiguous or as in this case, substantially defective.
    5. Section 88 of the Act is sub-headed "Traffic Infringements" it establishes the system to which I have referred. Sub-section 1, as edited, is as follows:

      "A person ... who has reason to believe (namely and usually a police informant) that a person has committed a traffic infringement of ... a prescribed kind (such as speeding or drink driving) ... may issue ... a traffic infringement notice in accordance with the Regulations." (My emphasis.)​

      Section 88, sub-section (2) reads:

      "Every traffic infringement notice must contain the prescribed particulars including sub-section (b) in the case of a traffic infringement notice in respect of an excessive speed infringement ... the speed ... . Sub-section (5) the penalty ... is the amount prescribed ...'."​

      Note the use of the imperative, a TIN must contain the prescribed particulars.
    6. Section 89 deals with the methods of payment of the penalty and s.89A entitled "Effect of Drink Driving Infringements and Excessive Speed Infringements" sets out the self-executing imposition of penalties and a method by which they may be challenged.
    7. Section 89A, sub-section (2) reads:

      "(2) ... A notice that is issued in respect of an ... excessive speed infringement takes effect 28 days after the date of the notice as a conviction for the offence specified in the notice unless the person to whom the notice was issued objects, within that time and in accordance with this section to the infringement notice. (My emphasis.)

      (3) ...

      (4) A person may object to the infringement notice by giving notice in writing of the objection to the person specified for that purpose in the infringement notice.

      (5) A Notice of Objection must state
      (a) ... a refusal to pay
      (b) the person requests the matter to be dealt with by a court
      (c) whether or not the person intends to defend

      (6) The giving of a Notice of Objection to the infringement notice has the effect that
      (a) the infringement notice is cancelled and
      (b) the person to whom the infringement notice was issued may only be proceeded against by a charge filed for the alleged offence."

      [*] I observe that the option, if exercised, to file a N.o_O. to a TIN carries with it statutory obligations and consequences. For a speeding or drink-driving offence, s.90A(5) imposes obligations on the objector to give details of the nature of the objection and the giving of that notice is guided by the provisions of sub-section (4) which requires the objector to give such notice in writing to the person specified for that purpose in the infringement notice. That is, the person to whom a N.o_O. must be addressed, is required, quite properly to be "specified" in the N.o_O. No further provisions of the Act applies to identify the recipient of a N.o_O. to a TIN, other than to say it must be the person so specified in the N.o_O. In fact, no person or address is prescribed in the Regulations. I observe, as a matter of common sense that the ordinary citizen would assume that the person to whom a N.o_O. is to be sent is likely to be the police member who issued the infringement notice , or as the TINs are issued in the name of Victoria Police under its logo, the Victoria Police.

      [*] I come to the Road Safety Act (General) Regulations 1999, statutory reprint 27/1999. Regulation 603(1) in Part VI relating to traffic infringements sets out the prescribed particulars of TINs. Sub-section (1) contains the required details as would be expected, date, time and place of the alleged offence. Part "g" reads as follows:

      "If the traffic infringement notice relates to an alleged drink-driving infringement or excessive speed infringement

      (i) ...
      (ii) Unless a Notice of Objection is received at the address specified in the notice within 28 days after service of the notice the notice will take effect as a conviction ..."​

      [*] The address specified in the notice referred to in this sub-section, is an address specified in the Notice of Objection and not an address or addresses specified or referred to in the TIN. The Regulation stresses that the address to which the objector must address his objection is the one specified in the Notice of Objection not an address in the TIN generally.

      For this interpretation I am bolstered further by the specific terms of sub-section (o) which reads:

      "If the notice [i.e. the TIN] is issued in respect of a drink-driving infringement or an excessive speed infringement under s.89A of the Act, the address of the person to whom a Notice of Objection is to be sent."​

      [*] The notice referred to in the sub-section must refer to the TIN as it relates to a drink driving or excessive speed infringements. Therefore, it cannot relate to the Notice of Objection itself. Furthermore, when the Regulation passes to consider the Notice of Objection, it capitalises the words and can only refer to that type of notice and no other. Accordingly, the Regulation requires that the Notice of Objection must contain the address of the person to whom that No O is to be sent. There are two mandatory requirements. Identification of "the person" and that person's address.

      [*] I come now to the actual terms of the infringement notice. It is printed in red type on a white sheet and contains printing on both sides of the paper. It is, as I have already said, entitled Victoria Police Infringement Notice. Thereunder, a series of boxes relating to various types of offences are printed. They are, for example, traffic, parking, environment protection, firearms, marine, letter, tobacco and Liquor Control Act. I immediately note that infringement notices are not restricted to road traffic offences but relate to various areas over which the Victoria Police exercises some powers.

      [*] Underneath the citations of the various Acts and matters to which infringement notices relate, are boxed squares which enable the family given names and addresses, date of birth and licence particulars of the alleged offender to be recorded.

      [*] Thereunder and surrounded by a heavy typed red border is a box headed "Your Offence Penalty and Points". Under that box, but still within the perimeters of the "Your Offence" heading is a secondary box entitled "Additional penalty for a driver's licence loss infringement effective 28 days after the date of this notice". In this case, the smaller box relating to licence suspension, was ticked and the figure 6 and word six have been inserted. Thereunder, in another sub-box, are the details of the informing police officer, that person's rank, number, station and code.

      [*] There follows another box within its own bold margins entitled "What you must do now to pay the penalty". It commences with a note, "If payment is not received within 28 days of notice date an additional agency fee will apply". I observe that an ambiguity in the infringement notice as a whole is thus revealed. The notice does not contain any reference to "agency" or who or what may be the agent's principal. If it is meant that an additional penalty is to be imposed upon failure to pay within 28 days, then simple words to that effect would suffice.

      [*] Within the box entitled "What you must do now to pay the penalty", three options are prescribed. They are headed as follows: by mail, in person, by phone or Internet. Thereafter, in ever decreasing type font size and boldness, details for each sub-section are given. By mail reads: "Send this notice with a cheque or money order made payable to CIVIC COMPLIANCE VICTORIA, (I shall abbreviate to "C.C.V.") GPO Box 2041S, Melbourne 3001". The option "In person" contains details as follows: "Payment can be made out CIVIC COMPLIANCE VICTORIA, Ground Floor, 120 Spencer Street, Melbourne between 8.00 am and 6.00 pm Monday to Friday (not public holidays), payment by credit card and EFTPOS available". Under the sub-section "by phone or Internet" various details are recited which it is not necessary to rehearse. My immediate observation in respect of the section "What you must do now to pay the penalty" is to observe that it details exactly what the heading dictates, that is, the methods by which a penalty can be paid should the person cited in the TIN, choose to admit or not challenge the commission of the alleged offence or the penalty imposed. Although the addressee "Civic Compliance Victoria" is in upper case, it is in 10 point type and the address itself is in lower case in approximately 8 point type, whereas the box itself is in upper case of approximately 14 to 16 point type and in bold. An ordinary citizen would have great difficulty in finding where he or she is to send the penalty moneys, as it is difficult to read yet, of course, it is important information. That observation is marginal compared with the far more serious deficits to which I now turn.

      [*] Nowhere in the TIN is the identity of Civic Compliance Victoria recited. Plainly, it is not the police force or apparently an agency of it. It is not a government department recognisable to the ordinary citizen. The recipient of an infringement notice relating to a criminal offence is required to send the penalty to a body referred to as "civic". The ordinary citizen would assume that civic has something to do with civil rather than criminal compliance, this is yet again, another confusion inherent in TIN's but this of itself, is not sufficient to impugn them.

      [*] The recipient of an infringement notice is required to turn the page over in order to come to the Notice of Objection. It too is contained in a self-contained box which is headed in capitals and in bold "NOTICE OF OBJECTION (APPLICATION TO APPEAR AT COURT)". It is in about 18 point font. The proforma notice contains provision for the name of the objector and in points a to c proffers grounds for objection, which reflect s.89A(5) of the Act. The objector selects one or more of these grounds to found the objection. There is provision for the objector's signature and then an address for the service of a summons. A separate box and I stress the division between the two boxes is the text "Warning". In it the following appears: "If you decide to lodge a Notice of Objection it must reach C.C.V. within 28 days of the date of this notice. Note: payment cannot be accepted where a Notice of Objection is lodged" and then in bold type "driving during a period of disqualification is a serious offence".

      [*] Significantly, no address for, or of, C.C.V. is recited within the Warning box, which I stress again is not part of the Notice of Objection. More significantly, no name, or address, of the intended recipient is recited within the Notice of Objection. The omissions are, in my view, fatal to the efficacy of such Notices of Objections. The N.o_O. does not comply with the provision of the Act and Regulations which require a Notice of Objection to specify or identify and give the address of that person to whom the Objection is to be sent. The Act does not require the objector to make guesses or postulate possibilities as to whom the addressee might be. Regulation 603 is quite specific. The N.o_O. must contain the name and address of the person to whom the Notice of Objection is to be sent.

      [*] The TIN in the warning box does contain the name of the objectee, namely, C.C.V. but it does not contain any address for that body. Insofar as the regulation requires a person to be recited as the recipient of a N.o_O., it could be contended that at least that part of the regulation has been satisfied. However, the Warning is not part of the N.o_O. and is separated from it by both space and margin line boxing. Therefore, the requirement of the N.o_O. to cite both the identity and address of the objectee remains unsatisfied.

      [*] Counsel for the DPP contended that a TIN should be read as an entire document and with the common sense the ordinary citizen possesses. He argued that as the addresses of Civic Compliance Victoria were contained on one side of the TIN, that address should be imported into the Warning box contained on the reverse side of the notice and further transferred into the Notice of Objection in the separate box above the Warning notice as being identification of the person and that person's address. In my view, there is no common sense in the submission. The addresses of C.C.V. are embedded in the section of the infringement notice surrounded by a bold red margin which encompasses the sections of (1) the offence, (2) the additional penalties and specifically, (3) "what you must do now to pay the penalty". Therefore, a person in receipt of the TIN who objects or challenges the details of an offence, or does not intend to pay, would not proceed to read the addresses contained in small type in the section. That person would turn the page to find the Notice of Objection totally bereft of any details as to whom or where the N.o_O. was to be sent. The N.o_O. includes the words "Application to Appear in Court". Presumably that is what an objector would want, the right to challenge the commission of the alleged offence or the pre-determined penalty. That person would expect to find the addressee of that challenge, in that box and not elsewhere. In my view, and as already stated, a person in receipt of a TIN is likely to assume the N.o_O. is to be sent to the person lodging the infringement notice in the first place, namely, the Victoria Police or at least the police member recited in a separate sub-box under the heading Additional Penalty. In my view, it is tendentious to suggest, that as a matter of common sense, a person objecting to a TIN and one who wishes to make an application to appear at court, should assume that the recipient of the objection is the same body to which a penalty should be paid, the very penalty to which objection is made.

      [*] Similarly, it appears that if a person were to receive an infringement notice under the terms of the Liquor Control Act or any of the other legislative provisions referred to in the small boxes referred in para 2 that person would be puzzled to find that a N.o_O. should go to a body called Civic Compliance Victoria? What has Civic Compliance got to do with a court; the ordinary citizen and most lawyers would almost certainly answer: None.

      [*] The Firearms Act 1996, Part 10, contains the provisions relating to the form of infringement notices. Part I recites that the person charged is entitled to disregard the notice and defend any proceedings in respect of the offence in the Magistrates' Court. The regulations of that Act in Part 4 relating to prescribed offences do not contain a proforma but do require the identity and address of the objectee to be included. The same defects apparently apply to the Marine Act 1988, Part 7 which relates to marine infringements and the regulations made thereunder Part 9, Regulation 902 which does set out the form of an infringement notice which is in line with a TIN but does not contain any N.o_O.

      [*] Counsel for the DPP also submitted that the proper interpretation of Regulation 603(1) in confluence with the terms of the Interpretation of Legislation Act 1984 s.35, should be to promote the underlying purposes of the Regulation. He argued that the purpose of the Act is to promote the efficient operation of the automatic penalty system, and the right to challenge it. Accordingly, so he contended, deficiencies in the Notice of Objection should be disregarded. I cannot accept that submission. An underlying purpose of the Act and Regulation is to safeguard the interest of citizens who seek to challenge the self-executing general sanctions levied by a TIN. In effect, that system is a package. Infringement notices are issued, either instanter or served by post, if the citizen accepts that an offence was committed as referred to in the notice then a conviction is recorded after 28 days. The pre-determined penalties stated in the notice must then be met by one of the three methods of payment. This is done without dispute or contention. However, where dispute or contention does arise a citizen can object to the automatic imposition of a penalty by lodging a notice of objection. It is the overall package which the regulation seeks to promote and it is that purpose which is part of the overall operation of the Act. Accordingly, s.35 of the Acts Interpretation Act assists the Respondent to this appeal even more than it assists the arguments of the appellant.

      [*] A further fatal fault with the N.o_O., even if it could be accepted the citation of C.C.V. is the person prescribed by Reg 603(1)(o) is that the Regulation mandates "the address" of the recipient is to be given. Not "an" address. The definite and not the indefinite article is used. The words of the Regulation do not allow or permit the objectee to choose between the three addresses recited in the box "what you must do to pay the penalty". In any event, how could the recipient of a TIN object as per option "c" by phoning or using the Internet? The same holds for option "a", objection by mail, which tells the recipient that the TIN is to be returned accompanied by a cheque or money order. It seems extraordinary to assume that a person who objects to the TIN and wants to have access to a court, should be told to return the TIN, not to a court, but to some other body. Likewise with option "b", which gives the recipient an address should payment in person be preferred, but it says that payment can be made by credit card or EFTPOS. These options assume payment when the very purpose of the objection is to deny the obligation to do so. All of the addresses given in the TIN are wholly inappropriate even if a person were to search for and settle upon one of them as the address to which an N.o_O. is to be sent, which of course that person is not obliged to do.

      [*] I turn now to whether C.C.V. is a juristic person capable of being a prescribed person under the terms of the Road Safety Act. There is no evidence, nor was there any before the magistrate, as to what is Civic Compliance Victoria. But common sense dictates that it is some sort of government body which receives the fines and penalties paid by citizens pursuant to the various infringement notices. In Green v Philippines Consular General McInerney J considered the Consul General of the Philippines was not a juristic person and accordingly an information relating to parking offences was a nullity as was the conviction raised upon it. Incidentally, he considered the court could, on its own motion, strike out the information and quash the conviction. I do not need to take this issue further. As I am satisfied the N.o_O. to a TIN is deficient and fails to comply with its enabling Act and Regulation it is immaterial whether Civic Compliance Victoria is a juristic person or otherwise.

      [*] I come now to pertinent Victorian authorities. Bazeley v O'Halloran per Cummins J was a case dealt with a TIN wherein a N.o_O. had been returned by post out of time. It is not directly related to the issue in case but it does emphasise the importance of a N.o_O. in permitting a person charged to have access to a court. In that case, Cummins J was of the view that having exercised the right of objection it could not be foreshortened by a technical delay. In DPP v Jamieson, Ashley J considered the requirements of a handup brief under the terms of the Magistrates' Court Act 1989, s.37. Again, this case is not directly in point and Regulation 203 of the Road Safety General Regulations which he considered did contain sufficient of the prescribed particulars and was capable of meeting the certified requirements. He held that it simply could not be said there is no evidence susceptible of proving that the operator of a breath analysis machine was pertinently authorised. This case did not consider the mandatory terms which find their place in Regulation 603.

      [*] More pertinently and recently, Warren J, as she then was, in Dawson v Magistrates' Court of Victoria considered the manner in which strict compliance of a mandatory requirement may be proved. The case concerned the Act s.49, the drink driving provisions, where a magistrate had dismissed a case because the court file had been lost and therefore she could not be satisfied the defendant had been given all the relevant information. However, her Honour was satisfied that the Magistrates' Court Act s.33 setting out the requirements of a summons was mandatory in its terms and should be complied with. In that case and also in Blair v The Magistrates' Court of Victoria it was held that where there was sufficient secondary material and evidence available to the court to infer that the strict statutory compliance of the Act had been satisfied the Court would not interfere. In this case the requirements of the N.o_O. stand alone, and are not subject to supplementary evidence from other court documents as was the case in both Blair and Dawson. I am concerned solely with the issue of whether the prescribed requirements of a N.o_O. have been met. As I have already indicated, I am satisfied they have not. As to mandatory terms, see Nitz v Evans, where Hayne J as he then was held it was a mandatory requirement for a true copy of the summons to be served, where the document was not a true copy service had not been properly effected. In Sinclair v Magistrates' Court of Victoria, Warren J as she then was concluded that the regulatory procedures required to extend a return date had to be strictly complied with. It is to be noted that the Court of Appeal in an application for leave to appeal was of the opinion that her Honour's decision that the statutory procedures be strictly complied with was "not attended with the necessary degree of doubt" to warrant the granting of leave to appeal. Brereton v Sinclair, Platz v Barmby, where Byrne J considered the matter of short service of criminal process involving a certificate under the Act as to the result of a blood test he said this:

      "To my mind the intent of Parliament is clearly expressed. Compliance with the service requirements is a pre-condition to admissibility of a certificate under this section. There is an evident policy underlying this that the defendant should have the opportunity of considering the content of the certificate well before trial. A certificate which has been short served in terms of the date of its tender into evidence is inadmissible."​

      [*] This case is in alignment with the facts before me. The consequences of not lodging a N.o_O. within the appropriate timeframe could include imprisonment. The citizen must be given the opportunity to challenge that consequence and the failure to alert the citizen as to where and to whom he must address that objection is fatal to the efficacy of that notice.

      [*] Long v Magistrates' Court of Victoria per Gillard J, Passy v Burn per Beach J where he held that a traffic control signal which did not comply with its enabling regulations was unable to found a conviction for breach of the Act.

      [*] Some Victorian authorities are helpful in interpreting Regulation 603 "g" and "o". In Director of Public Prosecutions v Croaker, Bongiorno J considered the nature of s.89A of the Act said this:

      "Section 89A of the Act has the effect that a traffic infringement notice issued in respect of a drink driving infringement `becomes' [sic] a conviction for the offence 28 days after the date of that notice. Within that 28 day period however the recipient of the notice has the right to object to the traffic infringement notice by giving notice in writing of his objection to the person specified for that purpose in the notice itself." ​

      [*]It can be seen that Bongiorno J, without specifically deciding the issue, considered it was a statutory requirement for the recipient of a traffic infringement notice who objected to it, be given the name and address of the recipient of the objection. Similarly, when he came to consider the nature of the penalty provisions, and after considering R v Tonks and Maxwell v R has said this:

      "While Maxwell and Tonks were both dealing with the procedures followed in a common law court the Act is providing a new method by which a conviction can be obtained, namely, by the issue of a traffic infringement notice, the failure to object to that notice and the statutory coming into effect of a conviction 28 days after the notice. It would seem to me to make a nonsense of the Act to say that in some way that conviction, which is itself a creature of statute, did not involve a finding of guilt, also a creature of the same statute." ​

      [*] In my opinion, Bongiorno J was correct. The only way a citizen can prevent an automatic conviction with possibly penal consequences, is to lodge a Notice of Objection so that the allegation can be contested. The TIN in this case does not enable the citizen to do that because it fails to tell him or her, to whom or where the N.o_O. is to go. The citizen is not obliged to guess, or make cross references. Regulation 603 is quite specific the N.o_O. itself should identify the person and state the Objection is to be sent.

      [*] There is some English authority from a very influential Court of Appeal which is apposite. Agricultural, Horticultural and Forestry Industry Training Board v Kent Lord Denning MR and Salmon and Cross LJJ considered the provisions of a statutory United Kingdom Form marketing Order requiring statistical returns. It mandated that an assessment notice should clearly state the Training Board's address for the purposes of the service of Notices of Appeal against the assessments imposed. In fact, 85% of the 100,000 farmers affected by the assessment notices had been served with documents which included the appropriate addresses, but 15% had not. Denning J said:

      "It seems to me quite plain - certainly read in conjunction with the section I read at the outset that the Industrial Trainings Act itself that it is implicit that the farmer should be told that he has a right of appeal and that he should be given the address for service of notice of an appeal. In order to comply with Article 4 of the levy order the assessment notice must state in terms that the address for service of a notice of appeal is [and the address is given]. ... It is not good giving the Board's general address that might not be the address for service at all." ​

      [*] Both Salmon and Cross LJJ agreed with the Master of the Rolls and considered that the terms of the United Kingdom order were mandatory rather than directory. Regulation 603 must also be mandatory, that is, in this case, C.C.V. could well be a body like Medibank or the Police Force itself and have any number of offices, stations, department and addresses. To paraphrase Lord Denning, "it is not good enough" to give a choice of addresses to which the payment of a penalty may be addressed, on one page of a form and assert that is sufficient to comply with a statutory and regulatory requirement that the address of the recipient be stated on the actual objection form. In my view, this authority wholly supports the conclusion at which I have arrived.

      [*] The obligation to comply with a statutory regulation which dictates the content of a form, especially in the cases, penal statutes, is referred to by Pearce and Geddes in the standard text "Statutory Interpretation in Australia" See also Pearce and Argument "Delegated Legislation in Australia". However, High Court authority settles the mode of interpretation, particularly in cases such as this which affect the rights of citizens in the face of the exercise of coercive powers such as the imposition of pre-determined penalties foreshortening usual judicial processes. George v Rockett concerned the form and content of a search warrant issued pursuant to the Queensland Criminal Code. The judgment of the whole Court said this:

      "A search warrant thus authorises an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s.679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions." (Emphasis added). And then later: "State and Commonwealth statues have made many exceptions to the common law position, and s.679 is a far-reaching one. Nevertheless, in construing and applying such statues, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation." (Emphasis added).​

      [*]I consider that to insist on strict compliance with s.89 and Regulation 603 simply gives effect to the purpose of the legislation. I should follow the High Court.

      [*]I considered a case, very similar to this one in Ozzie Discount Software (Aust.) Pty Ltd v Muling & Ors. In that case the terms of a search warrant failed to comply with its enabling Act. The headnote correctly reflects the judgment, viz

      "The defects in the warrant, in this case its failure to comply with the very Act pursuant to which it was issued, were fatal to its validity. The nature of the Act obliged police, throughout the nation to strictly comply with it. Near enough is not good enough. The judicial strictures pronounced at the highest level in this country, require any invasion of the homes and premises of its citizens to be properly and accurately authorized." ​

      [*]Had the Respondent driven when his licence had been lawfully suspended he could have faced prison. But the predicate for that lawful suspension must have been the opportunity either foregone or accepted to have challenged the allegations upon which the suspension was based. As the Notice of Objection given to him did not comply with the requirement to cite the person and addressee of the objectee, and access to the courts was impeded, he was not driving during a period of suspension and could no be convicted for so doing.

      [*]It is not possible to import into the Notice of Objection the name and address of C.C.V. printed on the other side of the TIN where it is referred to as the addressee when the citizen concedes there is no defence to the charge. The defect in the N.o_O.s is not inconsequential or a mere slip, it is a fatal flaw, the effect of which is to hinder justice. The Act and its Reg 603 has been ignored, the obligation to allow the citizen to challenge a criminal charge has been infringed. The whole TIN is defective, not just the N.o_O. The N.o_O. is an integral part of the system which gives rise to the TIN in the first place. Without a TIN there could be no Notice of Objection and vice versa. The magistrate was correct. The Notice of Objection fails to comply with the Act, the traffic infringement notice itself was defective, a conviction was not and could not have been recorded on the basis of this traffic infringement notice. The appeal must fail.

      The invalidity can be summarised as follows.

      1. The Act, s.89A(4) dictates the TIN must contain an N.o_O. which specifies the person to whom the objection is to be addressed. Sub-section (5) dictates what the recipient must put in the N.o_O. The N.o_O. is the vehicle which gives the objector access to the judicial system.

      2. Regulation 603(1) prescribes and mandates that an N.o_O. must specify

      (i) "the person" and that means the identity of that person and
      (ii) the address of that person, to whom the N.o_O. is to be sent.

      3. The N.o_O. in this case does neither. It fails to allow the recipient to object. That failure breaches the terms of the Act and one of its purposes of permitting alleged offenders to have access to the Courts.

      4. The TIN is invalid and no conviction under the Act can be sustained on the basis of it.

      [*] Whether the defects in the Notice of Objection arose out of mishap, incompetence or the work of a committee, the wretched result is that the Respondent's serial speeding will go unpunished at least temporarily.

      [*] The appeal is dismissed.​


  8. Queensland Consolidated Acts

    Section 15 — Infringement notices

    1. An infringement notice must be in the form approved by the administering authority.
    2. The notice must state the following
      (a) a unique number for the notice;
      (b) the date of the notice;
      (c) in relation to the alleged offender, unless the notice is served under section 14(3)—
      (i) the alleged offender's full name, or surname and any initial, and address; or
      (ii) the particulars that are, under a regulation, identifying particulars for the alleged offender; ​
      (d) in relation to the offence, particulars that are enough to show clearly the nature of the offence, including the following—
      (i) if the offence is one prescribed under a regulation for this paragraph—the identifying particulars prescribed under the regulation for the offence;
      (ii) if the offence took place over a period and did not involve a vehicle—the period over which the offence was committed;
      (iii) the place the offence was committed and, subject to subparagraph (ii), the time and date of the offence;
      (iv) if the offence involves a vehicle—the identifying particulars prescribed under a regulation for the vehicle;
      (v) if the offence involves an animal—the identifying particulars prescribed under a regulation for the animal; ​
      (e) the fine for the offence and how and where the fine may be paid;
      (f) that the alleged offender must, within 28 days after the date of the notice—
      (i) pay the fine in full to the administering authority; or
      (ii) make to the administering authority an election to have the matter of the offence decided in a Magistrates Court; or
      (iii) if relevant, give to the administering authority an illegal user declaration, a known or unknown user declaration or a sold vehicle declaration for the vehicle for the offence; ​
      (g) that the notice may be withdrawn before or after the fine is paid;
      (h) if the offence involves a vehicle, the general effect of section 17.
    3. The infringement notice must also state
      (a) if the fine is at least the threshold amount—
      (i) the alleged offender may, within 28 days after the date of the infringement notice, apply to the administering authority to pay the fine by instalments of not less than the minimum instalment; and
      (ii) if the administering authority approves the application and the alleged offender pays the first instalment, the alleged offender may pay all remaining instalments to SPER in any way acceptable to SPER; and ​
      (b) that if the alleged offender defaults, enforcement action may be taken to recover the amount, including by registering it with SPER, and additional fees may be payable.

    Source: State Penalties Enforcement Act 1999.

    Queensland Police — Procedures

    8.8.4 Certain particulars on Infringement Notice not to be altered

    • POLICY
      Details contained on Infringement Notices should not be altered.
      If any error is made during the completion of an Infringement Notice in a field on the Infringement Notice which can be neatly ruled through and initialled leaving enough space to insert the correct details this may be done.

      If any other error is made on an Infringement Notice during its completion, such Infringement Notice should not be issued, but another Infringement Notice should be completed and issued for that same offence (see s. 8.9.2: 'Action by officers - errors on Infringement Notices' of this chapter).

    8.8.5 Procedure for issuing Infringement Notices
      Officers issuing Infringement Notices should ensure that:

      (i) a consecutive order is followed commencing with the lowest numbered Infringement Notice;
      (ii) a ball point pen is used;
      (iii) all entries are legible on all copies;
      (iv) full and correct names of persons are inserted;
      (v) the alleged offender's correct residential address is recorded (check the rear of each licence for a changed address). If an address is given which is different to the residential address, such as a temporary address, lot number address, etc., such address is to be recorded on the rear of the pink copy;
      (vi) all details relating to the offence are completed;
      (vii) the correct offence title, code and Infringement Notice fine amount are entered onto the Infringement Notice regarding the offence;
      (viii) if applicable, the appropriate box indicating that the Infringement Notice was issued to an unattended vehicle or by mail is ticked;
      (ix) the reverse side of the prosecution copy is accurately completed in sufficient detail for evidentiary purposes. See s. 8.15: 'Evidentiary notes required for particular offences' of this chapter;
      (x) all notices are signed and dated; and
      (xi) their name is printed and their registered number and station details are inserted in the appropriate spaces.​
    • POLICY
      When giving a copy of an Infringement Notice to a person officers are to advise the person that the method of payment and procedure for having the alleged offence dealt with by a court are clearly outlined on the rear of the Infringement Notice.
      Details contained on Infringement Notices should not be altered.

    8.8.6 Identified problems
      Officers should take care to ensure that when issuing an Infringement Notice it is checked to ensure that:

      (i) it is properly numbered;
      (ii) it is correctly printed;
      (iii) copies are similar to the originals;
      (iv) all copies are legible;
      (v) if a driver licence is produced, that the licence number and particulars thereof are correctly entered on it;
      (vi) the current residential address of the alleged offender is correctly entered i.e. No fixed place of abode is not acceptable;
      (vii) the dates are correct i.e. date of birth, date of offence, date of issue; and
      (viii) identifying particulars (short title) of the offence are included.​

    8.9.1 Suitability of Infringement Notice for cancellation or waiving
      If it should come to the notice of the officer in charge of a station or establishment that an Infringement Notice contains one or more of the errors listed below, that Infringement Notice should be considered for cancellation or waiving:

      (i) incorrect name or address or date of birth of the alleged offender;
      (ii) no time of offence;
      (iii) no date of offence;
      (iv) no location of offence;
      (v) no penalty inserted;
      (vi) no offence title or code inserted;
      (vii) incorrect Infringement Notice fine amount inserted;
      (viii) incorrect offence title or code inserted;
      (ix) incorrect location (vastly different suburbs or areas - kilometres apart);
      (x) incorrect day of offence;
      (xi) incorrect date of offence in respect of allegation section only. An incorrect date of issue on the Infringement Notice on the same line as the issuing officer's particulars does not invalidate the Infringement Notice;
      (xii) expiration of limitation of proceedings;
      (xiii) more than one offence inserted;
      (xiv) parking offences where the vehicle is registered to a business or company and such business or company has been de registered or is in liquidation;
      (xv) issued to an overseas visitor and the prosecution copy of the Infringement Notice shows that the alleged offender has since left the state; and
      (xvi) where a local authority parking officer has issued a similar notice regarding a similar offence as that indicated on the Infringement Notice (see s. 8.14.2: 'Infringement Notices for parking offences' of this chapter).​

      In making a determination as to whether or not to cancel/waive an Infringement Notice, consideration should be given as to whether a prosecution action instigated before a court would be likely to fail due to the apparent defect in the Infringement Notice subject of the determination.

    Source: Queensland Police — Our Policies.

  9. Justus
    Do you bave readers digest mode
  10. Yes mate, read the first sentence.