Hall v Bobbermen[2009] QDC 188

[2009] QDC 188

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RYRIE

No 242 of 2009

BRISBANE

DATE 05/05/2009

JUDGMENT

HER HONOUR: This is an appeal brought on behalf of Mr Bernard John Hall, who is the applicant or appellant, against Kenneth John Bobbermen, the relevant police officer.  Mr Hall, the appellant hereinafter referred to as the appellant, was convicted on his plea of guilty in the Holland Park Magistrates Court of the offence of disqualified driving pursuant to section 78(1) of the Transport Operations (Road Use Management) Act 1995.

At that point, before the Magistrate hearing the matter, he was fined $650 and disqualified from holding or obtaining a driver's licence for a period of two years.  The Magistrate in applying that penalty had regard to section 78 of the Act hereinafter referred to as TORUM, particularly the maximum penalty and more importantly subsection 3 of section 78 of that which says, "that, if the person committed the offence whilst disqualified by any Court order from holding or obtaining a driver's licence, a period of disqualification of at least two years but no more than five should be given".

The appellant raises concerns of the unfair and inequitable result that he said he was unaware that the offence was being committed was his - by honest mistake, that he considered there was confusion and error on behalf of the police, department of transport and his status re legal ability to drive, resulting hardship, financial and otherwise.

At first blush, the submission made by the respondent that under the Justices Act the District Court does not have jurisdiction to hear an appeal against conviction where the appellant, like Mr Hall, entered a free plea of guilty at first instance is correct.  However, that does not prevent the Court from intervening where a person has entered a plea of guilty to a charge that clearly did not exist at law.  Indeed, the Court is required to intervene on that basis.

The facts relating to the circumstances of the offence shall be briefly put by me so it can be readily understood.  Mr Hall was intercepted by police on Logan Road, Holland Park West, about 2 or 3.00 p.m. on the 7th of July 2008.  He was asked for his driver's licence at which he produced a valid New South Wales driver's licence.  Police then made inquiries and were informed that he had been disqualified from holding or obtaining a driver's licence on the 13th September 1989, before a Court here in Queensland. 

Mr Hall admitted he recalled that disqualification and notice to appear was issued and upon the hearing before the Magistrate, it has to be said, that the Magistrate hearing the matter in Holland Park, Magistrate Springer, asked several times of the police officer whether he had a valid New South Wales licence at the time, which it was submitted he did.  However, Magistrate Springer was persuaded by the submission made by the prosecution that he would not have been eligible to apply for a valid New South Wales licence, that he must have made a declaration or failed to make a proper declaration, but that at the end of the day he wasn't entitled to have one even though he did have one.

Magistrate Springer accepted that submission, understandably perhaps because of what the Prosecutor, who has an obligation to present the matter to her fairly and equitably, put before her.  The question before the Court here is whether or not, not whether the Court has no jurisdiction but rather whether or not the order made by the Magistrate should be set aside on the basis that a plea of guilty entered freely by Mr Hall was in fact to an offence that did not exist at law.

Section 78 requires that a person will be convicted of the offence of driving of a motor vehicle without a driver's licence prohibited if they drive on a road unless they hold a driver's licence authorising the person to drive the vehicle on the road.  The definition contained in the schedule 4 of the relevant Act describes driver's licence to include and mean an Australian driver's licence or a foreign driver's licence.  It does not specifically say a Queensland driver's licence, for example, which - had it said that - Mr Hall would have been unable to contest the matter. 

He had a valid New South Wales driver's licence and had done since 1990.  He had lived in New South Wales at the relevant time for about 15 years, had come to and from the other State into this State to carry out work.  Thus the reason why he was here when he was intercepted in a random interception by police on - in July, 7th of July 2008.  As I've pointed out to Ms Litchen, the offence - before it can be committed by anyone including Mr Hall - must be by a person who drives a motor vehicle on the road without a driver's licence authorising him to drive the vehicle on the road.  Clearly, that's not the case; Mr Hall clearly did have a licence to drive within the definition of the provisions of TORUM to drive on the road, namely a New South Wales driver's licence. 

There is some "question" as to whether or not the licence of Mr Hall has held and has had reissued to him, which is unrestricted at the relevant time, from New South Wales was valid or how it was obtained.  That is not a matter for this Court to concern itself with.  Those are matters that if there is an offence being committed in the obtaining of the licence in New South Wales by Mr Hall or indeed if there is any question as to the validity of the licence that Mr Hall has had in New South Wales, as a result of the fact of the failure to disclose, for example, the 1989 disqualification in Queensland imposed and/or simply that it was by mistake that Mr Hall had obtained his licence because of an honest mistake on his part where he believed after two years that the absolute disqualification posed in 1989 would have gone and he would've been entitled to drive in the State, is irrelevant for the purposes of this appeal.

They don't need to be reconciled by me.  Those are matters that can be followed up or chased up by the State of New South Wales.  I only have to concern myself, for the purpose of this appeal, as to whether or not the offence was committed to which Mr Hall entered a plea.  I'm satisfied he did enter his plea freely but he entered a plea to a charge that simply was wrong in law.  There was no offence committed by him in the circumstances because of the reasons that I have given.  It is for those reasons that the only conclusion that I must make is that the Magistrate was - fell into error and indeed was led into error by the Police Prosecutor litigating the matter before her who advised her upon her querying him several times as to the New South Wales licence that her Honour could still make the order that she ultimately did. Notwithstanding being led into error the plea entered into against a charge that does not exist at law must be set aside by this Court in its appellant jurisdiction.

My order shall therefore be that the order made and I, err the Magistrate, in Holland Park on the 5th of January 2009 be set aside and that there be no order made in by way of penalty in relation to Mr Hall's appearance because there is no offence which has been committed and as such no order can be made against him.  So that it's clear, the order by the Magistrate is set aside where she convicted and fined Mr Hall $650 and specifically disqualified him from holding or obtaining a driver's licence for a period of two years.  That disqualification shall be lifted and the fine shall be vacated.