Riordan v Grohl[2000] QCA 487

COURT OF APPEAL

McMURDO P

McPHERSON JA

DOUGLAS J

BRISBANE

DATE 27/11/2000

JUDGMENT

THE PRESIDENT:  The applicant pleaded guilty on 31 January 2000 in the Magistrates Court at Southport to one count of driving under the influence of liquor under s.79 Transport Operations (Road Use Management) Act 1995.

He was fined $400, disqualified from holding or obtaining a driver's licence for three months and a conviction was recorded.  He appealed under s.222 Justice Act 1886 to a District Court Judge at Southport from that part of the Magistrates order which recorded a conviction.

The learned District Court Judge dismissed that appeal with costs.  This is an application for leave to appeal from that order under s.118 District Court Act 1967. 

The applicant, a US citizen, is 31 years old and has no prior convictions.  He is the lead guitarist and singer for the well known and internationally successful pop group Foo Fighters.  He and his band have undertaken very significant charitable works estimated about $10 million.  He had been performing at the Gold Coast earlier on the evening of the offence.  He and a friend were sightseeing at about 10.54 p.m. on 23 January 2000; they were each driving mopeds, low-powered motor cycles.

In a random breath test he was found to have a blood alcohol level of .095 milligrams of alcohol per 100 millilitres of blood.  The applicant's barrister told the Magistrate that as a US citizen he would have to indicate in his landing card whether he had been convicted of any criminal offence and that "a lot of serious consequences flow from that", apparently, because in some US states this offence is regarded as a felony.  The applicant was used to drinking lighter US beer and was unaware of the Queensland laws as to drink driving; many US jurisdictions have a .08 or .1 level.

The applicant was concerned as to the effect a conviction would have on future engagements in the Middle East scheduled later in 2000.  His counsel's submission was put no higher than that "with the blight of a conviction for this he well may be banned from a number of places where the band itself could perform".

His counsel urged the learned stipendiary Magistrate to exercise his discretion under s.12, Penalties and Sentences Act 1992 not to record a conviction and noted that many of those dealt with for minor drug offences had no convictions recorded against them.

The police prosecutor initially submitted to the Magistrate that there was authority that convictions must be recorded in relation to drink driving offences.  The Magistrate was referred to the case of Hauser v. O'Shea, District Court Toowoomba, 11 March 1994, Appeal No 4 of 1993; a much more serious matter than this.

The learned Magistrate accepted he had a discretion as to whether or not to record a conviction.  He mentioned all matters favourable to the applicant and concluded that a conviction should be recorded although he gave no particular reasons for doing so. 

The Magistrate also referred to another unnamed matter, we are told probably the matter of McDermott, where a woman political candidate with a blood alcohol level of .137 had no conviction recorded against her; there was, it seems, something of a public outcry and an Attorney's appeal under s.222 Justices Act which was heard immediately following the hearing of this matter in the District Court; the Attorney's appeal was successful and a conviction was recorded.

The learned District Court Judge in considering this appeal concluded that the Magistrate in exercising his discretion to record a conviction could not be said to have come to that conclusion through error.  In reaching that conclusion his Honour noted, as to the submission that the applicant would suffer economic hardship if he was not allowed to visit middle eastern countries,

"Whether the recording of a conviction would involve any significant difference would depend on the questions asked of the visitor.  In the absence of any specific evidence on the point I consider that it is more likely that the immigration authorities would want to know whether the applicant for entry has committed the offence rather than whether a conviction has been recorded for the offence.  A person should not be allowed to misrepresent the true state of affairs by asserting that he was not convicted of an offence when he had been convicted but the conviction was not recorded."

This Court considered the consequences of not recording a conviction under s.12 Penalties & Sentences Act 1992 in R v. Briese ex parte Attorney-General [1998] 1 QdR 487. 

Thomas J, as he then was, and White J noted at 491:

"The consequence is that when there is a non recording of conviction there is a prohibition upon entering the conviction into any records whatsoever -  s.12(3)(b) - other than the Court's own record and the offender's criminal history.  Further, under s.12(3)(a) the conviction is taken not to be a conviction for any purpose.  It would seem that an offender who declared, even in a statutory declaration, that he had no previous conviction or expressly denied having been convicted of the relevant offence could not later be charged with perjury.

In short, although s.12 lacks the detail of the Criminal Law (Rehabilitation of Offenders) Act 1986 it appears to have a similar effect to s.8 of that Act which permits an offender, after the rehabilitation period, to deny ever having been convicted.

It is therefore obvious that the effect of such an order is capable of considerable effect in the community.  Persons who may have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the immigration department...in essence a provision of this kind gives an offender a right to conceal the truth and it may be said to lie about what has happened in Court."

Subject to those observations, his Honour was correct that disclosure will depend on the questions asked in any entry form to a foreign country and the law of the country sought to be visited:  R v. Gallagher ex parte Attorney-General [1997] QCA 467; CA No 352 of 1997, 19 December 1997.  

But regardless of those comments, I am not persuaded that the learned District Court Judge's conclusion, that the Magistrate did not err in his manner of exercising his discretion to record a conviction under s.12 Penalties and Sentences Act 1992, has been demonstrated to be wrong, despite the significant factors in favour of the applicant.

The material placed before the learned Stipendiary Magistrate as to the effect of a conviction recorded against him for this offence was not unequivocal.  The submission was no higher than that a conviction may well mean that he is banned from some places where the band intended to perform in the future.  His blood alcohol level was almost twice the legal limit.  The Stipendiary Magistrate properly recognised he had a discretion whether or not to record a conviction. 

On the facts of this case the discretion could have been validly exercised either way but the applicant has not demonstrated any reason to justify the granting of leave to appeal in this case.  I would refuse the application.

McPHERSON JA:  I agree that no error has been demonstrated in the exercise of the primary discretion to record a conviction.   The application should be dismissed.

DOUGLAS J:  I agree with the reasons of both the President and Mr Justice McPherson.

THE PRESIDENT:  The order is the application is dismissed.