MacDonald v Queensland Police Service
[2008] QDC 8
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- MacDonald v Queensland Police Service[2008] QDC 8
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MacDonald v Queensland Police Service[2008] QDC 8
MacDonald v Queensland Police Service[2008] QDC 8
[2008] QDC 8
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBERTSON
No 54 of 2007
No 186 of 2007
COLIN JAMES MACDONALD | Appellant/Respondent |
and |
|
QUEENSLAND POLICE SERVICE | Respondent/Appellant |
MAROOCHYDORE
DATE 31/01/2008
ORDER
CATCHWORDS: | Appeal: whether Magistrate erred in holding that Todd v QPS [2005] QDC 252 was authority for the proposition that a person convicted of an offence against s 80(11) of the TORUM could apply successfully for a restricted licence pursuant to 287(1) Traffic: where person convicted of offence of failure to supply at police station (s 80(11)) and applied for a restricted licence; proper construction of deeming provision in s 80(11) |
HIS HONOUR: I order that the appeal 186 of 2007 be dismissed.
…
Appeal 54 of 2007
On the 22nd of February 2007 in the Maroochydore Magistrates Court, his Honour, Mr Ken Taylor, fined Colin James MacDonald $1500 in default of payment within three months to serve 25 days imprisonment, and disqualified Mr MacDonald from holding or obtaining a driver's licence for 15 months.
Mr MacDonald had previously pleaded guilty to failing to provide a specimen of breath for breath analysis which is a breach of section 80(11) of the Transport Operations (Road Use Management) Act 1995 (TORUM), and failing to supply a specimen of breath for a roadside breath test, which is a breach of section 80(5A) of the TORUM.
His Honour then dealt with an application for a restricted driver's licence pursuant to section 87(1) of the TORUM, and was persuaded, on the authority of Todd v Commissioner of Police Services [2005] QDC 252, a decision of Judge Robin QC on the 15th of August 2005, that he had power to make a restricted driver's licence, notwithstanding the fact that Mr MacDonald had been convicted of a section 80(11) offence.
The Queensland Police Service appealed against that aspect of the order, and their notice of appeal was filed on the 21st of March 2007.
In order to properly deal with the submissions made on behalf of the appellant, it is necessary for me to set out some background facts. The offences came about in this way. Mr MacDonald was driving his utility motor vehicle in the early hours of the morning of the 25th of March 2006 along Pacific Avenue, Sunshine Beach, when he was intercepted by a police unit operating a random breath test unit.
Initially he failed to stop, but was followed by police and stopped several hundred metres away in a nearby street. He was approached by two police officers, namely Constables Ireland and Rogers. Police noticed a strong smell of alcohol on his breath, and that his eyes were red and he was unsteady on his feet. He admitted that he had consumed alcohol earlier in the evening.
He was asked to provide a specimen of breath at the roadside. He failed to provide a specimen and told police that he could not supply a sufficient specimen because he suffered from asthma. He was given four further opportunities to supply a specimen, but on each occasion, sucked back thus preventing air from entering the device. In light of his later plea, Mr MacDonald concedes that he failed to provide a specimen at the roadside and was in breach of section 80(5A) of the TORUM.
He was then detained and taken back to the Noosa Police Station for the purposes of conducting a breath test on the breath analysis machine at the station.
At the station, he used his Ventolin inhaler, contrary to instructions from the police not to do so, which delayed the actual test by 20 minutes. When he was taken into the breath analysis room, he feigned an asthma attack and attempted again to use his inhaler and refused to surrender it when directed by police to do so. He was permitted to retain it, but told by police not to use it because of the pending test. He again attempted to use it and police then attempted to take the dispenser from him which led to a struggle which ended when the dispenser was taken from him on the floor and he was handcuffed. He was subsequently charged with obstructing Senior Constable Rogers.
He was then directed to provide a specimen into the machine by Rogers. He repeated his actions at the roadside of sucking back instead of blowing in. He was given three opportunities and was subsequently charged with a breach of section 80(11) of the TORUM. He was also charged with a breach of section 79(1)(A) of the TORUM in respect of the original driving.
The matters then meandered through the Noosa Magistrates Court until a hearing date was set on the 27th of October 2006 before Magistrate Killeen. Mr Crosby, who represents Mr MacDonald still, was then representing Mr MacDonald, and he sought a preliminary ruling from his Honour to this effect, that:
- (a)Senior Constable Rogers was the authorised police officer who operated the breath analysing instrument;
- (b)That Senior Constable Rogers was one of the two persons who arrested and detained the appellant pursuant to section 80(8) of the TORUM.
- (c)That, pursuant to section 80(8J) of the TORUM, Senior Constable Rogers is prohibited from being the officer operating the breath analysing instrument.
- (d)The arrest in section 80(8J) included detain under section 80(8).
- (e)That the purpose of the section was to ensure the accused person was conscious that the operation of the breath analyser was independent from the detention process, and
- (f)Accordingly, no proper requisition had been made of the appellant.
There is no transcript of the proceedings before Mr Killeen, and, apart from Mr Crosby's outline of argument filed in the now dismissed appeal, 186 of 2007 on the 1st of November 2007, there are no details of the argument or arguments then advanced to Mr Killeen.
Mr Crosby informs me that Mr Killeen ruled that, as Constable Ireland had charged Mr MacDonald, and he was the only arresting officer, he did not interpret the section to restrict the accompanying and supporting officer from operating the breathalyser instrument, and referred to the possible difficulties of a contrary result in small stations.
It appears from the Bench charge sheets that, on the 27th of October 2006, presumably after the ruling, Mr MacDonald entered a plea of guilty to the section 80(11) charge, and the matter was adjourned.
The Bench charge sheets record that, on the 22nd of February 2007, when the matter came on for hearing before Mr Taylor, no evidence was offered by the prosecution on the section 79(1) charge, and it was dismissed, and pleas were then entered in relation to the remaining three charges.
The record of proceedings before Mr Taylor indicate that his Honour very reluctantly found that he was bound, by the decision of Judge Robin in Todd, to hold that the Court had power to make a restricted licence order pursuant to section 87(1). The record indicates that it was conceded by the prosecutor that Mr MacDonald had satisfied the onus placed on him by section 87(5)(a), and the only issue in dispute was whether the Court had power to make an order for a restricted licence because of section 87(5)(d)(a) of the TORUM which is in these terms:
- “(5)An application for an order under this section shall not be granted -
…
…(d)(a) if the disqualification for which the application is made resulted from the applicant's conviction for an offence against section 79(1),…"
As I have noted, the Queensland Police Service lodged an appeal against Mr Taylor's decision on the 21st of March 2007, and the appellant's outline of argument was filed on the 1st of May 2007, and Mr MacDonald's, as respondent, on the 23rd of August 2007. On the same day Mr MacDonald lodged an appeal against Mr Killeen's order made on the 27th of October 2006. This led to further delays to ensure that the Practice Direction in relation to section 222 appeals was complied with, and both appeals were finally set for hearing together today.
At the commencement of today's proceedings, Mr Crosby informed me that he was not proceeding with Appeal number 186 of 2007, and it was struck out.
There can be no doubt that on the 22nd of February 2007, Mr MacDonald pleaded guilty to both a section 80(5A) and a section 80(11) offence. Mr Taylor felt that he was bound by the decision of Judge Robin in Todd to hold that the application for a restricted licence pursuant to section 87(1) could be made, notwithstanding section 87(5)(d)(a).
At the time of the hearing, Mr Taylor was one of the most experienced Magistrates in Queensland. He has since retired. He expressed surprise that the decision in Todd appeared to alter what he had hitherto thought was a clear construction of the relevant sections of the TORUM to the effect that a person convicted of a section 80(11) offence could not succeed on an application pursuant to section 87(1). At first blush, his Honour's surprise may itself be surprising, because section 80(11) is not referred to in section 87(5)(d)(a). However, that would ignore the express words of section 80(11). If a person is guilty of an offence against s 80(11), the offence:
"…shall be deemed to be an offence against the appropriate provision of section 79(1) and the offender is liable to the same punishment in all respects (including disqualification from holding or obtaining a Queensland driver's licence) as the person would be in the case of the offence being actually one committed by the person against the provisions."
It would follow that, by giving those words in section 80(11) their ordinary and natural meaning, a person who pleads guilty to a section 80(11) offence is deemed to have pleaded guilty to a section 79(1) offence, and therefore unable to succeed in an application for a restricted licence. Mr Taylor's intuitive response was therefore entirely correct.
It is necessary to look closely at the decision in Todd to ascertain if, indeed, Judge Robin concluded, as Mr Taylor found he did, that a person convicted of a section 80(11) offence could succeed on a section 87(1) application which is contrary to the conclusion that I have reached.
Unlike Mr Taylor, I have had the advantage of reading the transcript of the original proceedings before Magistrate Tynan, in Todd, which took place in the Cleveland Magistrates Court on the 16th of March 2005. Mr Simon Lewis of counsel represented Mrs Todd at that time, and also on the appeal later before Judge Robin.
At the start of the hearing, Mrs Todd was facing five charges. I am satisfied that the prosecutor told the Magistrate that the charges to be withdrawn were the section 79(1) charge and the "fail to provide on a roadside" which he incorrectly identified as an offence against section 80(11). (The transcript says 18(11); it is clearly an error).
Mr Lewis then informed Ms Tynan that a section 87(1) application would follow the plead. Her Honour responded, enigmatically, "not eligible". Mr Lewis then submitted (correctly in my view) that, under section 80(5A), Mrs Todd was eligible to apply. The prosecutor then said:
“The charges that remain…they're the contravene requirement; a failure to provide under section 80(5A), there's an obstruct police…".
In response to her Honour, he agreed that there was another obstruct charge as well. There is no evidence on the record that Mr Lewis did enter a plea on Mrs Todd's behalf, but he did say that two charges would be discontinued and that she would plea to the remaining three.
The prosecutor then proceeded to outline the facts. When he got to the details of the failure to supply a specimen at the roadside, Mr Lewis objected saying that these facts were related to "the charge that has been discontinued". The prosecutor went on to describe the facts relating to the failure to supply at the station, i.e. the section 80(11) charge without referring to the actual section.
What is clear to me is that, at this stage, there was confusion as to which charge had actually been discontinued. The Magistrate immediately went on to deal with the section 87(1) application, i.e. before convicting Mrs Todd; which is contrary to the express requirements of section 87(1). In the proceedings before Mr Taylor on the 22nd of February 2007, his Honour convicted and disqualified Mr MacDonald before proceeding to deal with the section 87(1) application, which is the correct approach according to the Act.
Her Honour Magistrate Tynan asked Mr Lewis what section it was he was referring to, and he replied:
“If your Honour looks at section 87(1), where a person is convicted by a Court of an offence under section 79 or 80(5A) and 80(5A) is the fail to provide section under which my client is about to be convicted, it goes on to say that then the Court may, where it has received an application, make an order directing the person be issued with a restricted licence. So the situation has changed somewhat, from what it was under the old Traffic Act".
The prosecutor then intervened to say that he could not advance any reason why Mrs Todd could not make the application.
It is clear to me that no one was then alert to the obvious confusion that had arisen. Without further discussion, the 87(1) application then proceeded. Inferentially it appears that her Honour accepted the correctness of Mr Lewis's submission. His submission would have been correct if, indeed, both the section 79(1) charge and the section 80(11) charge had been discontinued. This is what everyone assumed, incorrectly as it now appears. Certainly her Honour was not referred to the deeming provision in section 80(11). It is clear to me that this same error was continued in the appeal before Judge Robin.
In her Honour's decision, Ms Tynan refers to Mrs Todd being "charged with failing to provide a specimen of breath" without designating under which section. She then proceeds to deal with the merits of the section 87(1) application without reference to section 80(11).
I do not have the transcript of the proceedings before Judge Robin on the 15th of August 2005, but it is clear that his Honour heard and determined the appeal on that day, so that his reasons were delivered ex tempore. What is clear is that his Honour believed (correctly) that Mrs Todd had been convicted of an offence "of failing to provide a sample at Cleveland Police Station"; however, the same error that had been perpetrated in the Magistrates Court was continued in the proceedings before his Honour because he has proceeded to assume (wrongly) that this meant that Mrs Todd had been convicted of an offence under section 80(5A), whereas, in fact, she had been convicted of an offence under section 80(11). It is clear to me from the last paragraph of his Honour's reasons on page 2 of his judgment that he wrongly assumed that section 80(5A) was the offence which resulted, upon conviction, in the person being deemed convicted of having a high blood alcohol concentration.
His Honour then proceeded to deal with the grounds of appeal which related to the Magistrate's decision to hold that Mrs Todd had failed to satisfy her that she was "a fit and proper person" pursuant to section 87(5)(a)(i). His Honour said (at page 5 lines 52 to page 6 lines 22) the following:
“This is one of the few instances in recent years in my experience where the law has been ameliorated rather than toughened from the point of view of offenders. The Parliament has made a deliberate decision that offenders against section 80 subsection (5A) may make an application for a restricted licence.
I think the Magistrate here erred, perhaps influenced by surprise that the application was even open, in attaching decisive weight to the events of a confined period of a single evening. Those, in my opinion, in the present circumstances, do not preclude the appellant from showing she is a fit and proper person."
This is another example which demonstrates that his Honour was assuming (as he had no doubt been told by those appearing) that the failure to supply at the police station was an offence against section 80(5A) of the TORUM when it is not. That a Judge of his Honour's learning and experience has not referred to section 80(11) is decisive of the issue. He was clearly led into this understandable error by the proceedings in the lower Court and by those appearing before him on the appeal.
Mr Taylor was right to express concern about what he believed was a significant change to the law that he, as an experienced Magistrate, had thought was clear prior to Todd. He erred only in concluding that Todd was authority for the proposition that a person convicted of a section 80(11) offence could succeed on a section 87(1) application.
Although Mr Crosby has conceded the appeal, I should, for completeness sake, deal with his submissions in relation to this point. His outline of submission filed on the 23rd of August 2007 carefully skirts around this obvious difficulty that I have identified. His argument is twofold. He referred to Todd, conceding that Mrs Todd was convicted of a section 80(11) failure to provide a specimen. He submits that the District Court in Todd was not in any confusion, but, for the reasons I have exposed, I disagree with that. The second limb of his argument is to submit that a proper reading of section 80(11) does not lead to a conclusion that his client was convicted (for an offence against section 79(1)).
Mr Crosby argues that the deeming provision in section 80(11) distinguishes section 80(11) breaches from breaches of section 79(1) because, otherwise, the additional words relating to punishment would be superfluous. It is abundantly clear to me that the legislature clearly intended that people convicted of offences against section 80(11) are to be regarded as being convicted of a section 79(1) offence and to be subject to the same punishment and the same legal consequences.
I also agree with the prosecutor's argument that the result contended for by Mr Crosby would make no sense when one has regard to the objects of the Act, because, otherwise, heavily intoxicated drivers could simply refuse the test at the police station, and, nevertheless, still be able to apply successfully for a restricted licence. On the other hand, a heavily intoxicated driver who complies with the law and takes the test and is then convicted of a section 79(1) offence would not be able to apply.
I hold that Todd is not authority for the proposition that a person convicted of failing to supply at a police station in breach of section 80(11) is eligible to apply for a restricted licence. Mr Taylor erred only in assuming it was. Mr MacDonald was convicted on his own plea of guilty of failure to supply under section 80(11), and therefore could not succeed in an application for a restricted licence. The appeal is therefore allowed, and I set aside the order made by Mr Taylor for a restricted licence.
…
It follows that, as a result of my order, Mr Taylor's order would otherwise remain unchanged so that Mr MacDonald would be subject to a penalty of a $1500 fine and a 15 month licence disqualification as from the 22nd of February 2007. Ms Cupina, on behalf of the appellant, has now applied for leave to amend the notice of appeal to add a ground that the sentence is manifestly inadequate. This is because, as a result of the decision I have made, in effect, Mr MacDonald has had the benefit of a restricted licence for a period of almost a year which came about, in her submission, as a result of the delays in the appeal process, particularly occasioned by the filing of Mr MacDonald's appeal on the 24th of August 2007.
Mr Crosby opposes leave being given to the Queensland Police Service. Mr Taylor, in his usual thorough and efficient manner, indicated that, but for the imposition of a restricted licence, he would have imposed a 12 month disqualification order upon Mr McDonald. I am not certain that the restricted licence order forms part of the sentence. It appears to me that the delays could have been avoided, (in this regard, I do not proffer any criticism against any legal representative involved in the matter) by simply insisting that the Queensland Police Service appeal be heard expeditiously. I appreciate that once the appeal of Mr MacDonald was lodged on the 24th of August 2007, necessarily that appeal had to be determined because it had the potential effect of going behind the later plea of guilty. I think there is considerable merit in Ms Cupina's submission as a matter of fairness and justice. However, given all the circumstances, and given the fact that Mr MacDonald will be subject to an ongoing disqualification order until the 22nd of May 2008, the circumstances are not such that I would permit the appellant to amend the notice of appeal. Such an option was open to the appellant at the time that it filed the appeal by pleading inadequacy in the alternative. In the circumstances, I will not grant leave, and the orders that I have made will have the effect that Mr MacDonald will be fined $1500 and disqualified for 15 months from the 22nd of February 2007.