Russell v Kost
[2001] QDC 87
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- Russell v Kost[2001] QDC 87
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Russell v Kost[2001] QDC 87
Russell v Kost[2001] QDC 87
DISTRICT COURT | No 25 of 2000 |
APPELLATE JURISDICTION
JUDGE RICHARDS
JOHN RUSSELL | Respondent (Complainant) |
and
ANTHONY THYS KOST | Appellant (Defendant) |
IPSWICH
DATE 20/04/2001
JUDGMENT
HER HONOUR: On 25 August 2000 the appellant was convicted of disqualified driving after a trial conducted in the Ipswich Magistrates Court. At trial, all the facts of the offence were admitted and the appellant acknowledged his guilt of the offence of unlicensed driving, challenging instead, the validity of the charge of disqualified driving.
The history of this matter shows that the appellant accumulated 12 demerit points on his open licence between 1 July 1998 and 9 January 1999. As a result, his licence was cancelled. On 9 June 1999, a special provisional licence was issued which, by regulation, provided that the accumulation of two or more demerit points would lead to cancellation of the provisional licence.
On 26 September 1999, the appellant drove, without a seatbelt properly adjusted and fastened, and this resulted in a fine and three demerit points. On 11 November 1999, a letter was sent to the appellant, advising of the cancellation of his licence and asking for the return of his licence by 5 December 1999. The letter advised that if the licence was not returned by that date his licence would be automatically cancelled and he would be unlicensed. The appellant eventually surrendered his licence on 31 March 2000 and pursuant to the Traffic Regulations, his licence was cancelled from 29 September 2000.
On 5 July 2000, he was intercepted by police and subsequently charged with disqualified driving. On 1 December 1999, the Transport Operations (Road Use Management) Act of 1995 and the Transport Operations (Road Use Management) Drivers Licensing Regulations 1999 commenced. Under Regulation 26, if a person accumulates two or more points under this regulation, the person licensed was liable to be cancelled from the cancellation date, which in this case was six months from the date the licence was returned, namely 31 March 2000, and was disqualified from driving for six months after the licence was returned.
The appellant argued, and the Crown conceded, that this regulation added a circumstance of aggravation to the offence under the old Traffic Regulations, and as such, the change from the Traffic Regulations to the Transport Operations (Road Use Management) Drivers Licencing Regulations, was a substantive change in the law and therefore the appellant should have been charged under the old regulations, not the new ones.
Under the previous legislation (that is the Traffic Act of 1949 and the Traffic Regulations of 1962), Regulation 108BB provided that a person accumulating two or more demerit points under a special provisional licence would have their licence cancelled for six months. The cancellation, however, resulted in the driver being unlicensed and not disqualified (see Cousins and Pratt, unreported White DCJ, February 1999). As previously stated, the current regulations purport to cancel the licence and disqualify the person from holding or obtaining a driver's licence for six months.
The questions raised by this appeal are firstly whether the licence was cancelled under the old legislation or the new legislation and, secondly, if cancelled under the new legislation, whether Regulation 26(3) purporting to disqualify a person from driving for six months is ultra vires.
In relation to the first part of the appeal, the real question is :
- (a)whether the relevant law to be applied is that applicable at the time the demerit points were accumulated, at the time the licence was cancelled, or at the time that the appellant drove; and
- (b)whether the imposition of the disqualification was such that the appellant was being more heavily punished than previously.
The transitional provisions of the Transport Operation (Road Use Management) Act provide that all relocated provisions of the Traffic Act continue in force (section 187) and the Traffic Regulations 1962 continue in force after the repeal of the Traffic Act as though it had been made under the Act (section 190).
Section 193 of the Act states:
“The Acts Interpretation Act 1954 section 20, applies to:
- (a)the amendment of the Traffic Act 1949 by the relocational provisions to this Act; and
- (b)the repeal of the Traffic Act 1949.”
Section 20C (3) of the Acts Interpretation Act 1954, provides:
“If an Act increases the maximum or minimum penalties for an offence, the increase applies only to an offence committed after the Act commences.”
There is no doubt, in my opinion, that a disqualification of a driver's licence is a more serious penalty than merely being unlicensed. The provisions of section 78 of the Act (previously section 15 of the Transport Act), make this clear. An unlicensed driver who drives is subject to a penalty of 40 penalty units or six month's imprisonment and six month's disqualification. A disqualified driver who drives, is subject to 34 penalty units or 18 months imprisonment and absolute disqualification from driving.
Having regard to the decisions of the Court of Appeal in R v. Mason and Saunders, 1998 2 Queensland Reports, 186; R v. Troung, Court of Appeal 438 of 1998; R v. Breen, Court of Appeal 105 of 1999 and R v. Staines, Court of Appeal number 462 of 1998 and Section 23 of the Acts Interpretation Act, the imposition of the circumstance of aggravation to the offence of unlicensed driving should be seen as an increased penalty and a presumption against retrospectivity therefore applies.
The next question is when the offence was committed. The appellant contends that the relevant date to consider is the date the act was committed, which gave rise to the loss of the demerit points, namely 26 September 1999 or at least the date of the notice of cancellation, namely 11 November 1999, which was the date the offence of 26 September 1999 was finalised. The learned Magistrate held that the relevant date was the date on which he was intercepted whilst driving, namely 5 July 2000. A third possibility was either the return date on the notice, that is 5 December 1999, or the date the licence was returned, namely 31 March 2000, that being the date from which the six month cancellation was calculated.
Again, having regard to the decisions of the Court of Appeal, to which I have just referred, and the decision of the High Court in R v. Siganto, 1959 ALR 94, the answer is not a clear one. However, at the end of the day, I have decided that as the end result is an increase in penalty and, unlike Siganto, there are no relevant transitional provisions which imply retrospectivity, that a conservative approach should be taken. Although the licence was not actually cancelled until 5 December 1999, the triggering offence occurred on 26 September 1999. From that time the licence was to be cancelled and it was only a matter of administrative detail before that actually occurred. Following the decision in Eustace and O'Shea, unreported, Hoath DCJ, Southport District Court, May 2000, the law to be applied should be that which existed on 26 September 1999.
The second question raised by counsel was whether the new regulations in relation to disqualification of licences are in fact ultra vires. I understand this matter is already being considered by Judge Robertson in McMasters and Foley, unreported District Court, 22 March 2001. Whilst I see no reason to disagree with his Honour's conclusions in that case, it is not necessary for me to consider that question further in light of the conclusion I have come to in relation to the first question.
The appeal is allowed. The conviction is quashed.
...
HER HONOUR: The conviction is quashed. I substitute a verdict of guilty in relation to the charge of unlicensed driving. He is fined $300 in relation to that offence, one month to pay, in default six day's imprisonment. I order that the respondent pay the appellant's costs of this appeal, costs to be agreed between the parties, in default of agreement to be taxed.
...
HER HONOUR: No conviction is recorded.