Lee v Commissioner of Police[2010] QDC 275

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an appeal by the appellant, Anita Nicole Lee, against the Queensland Police Service, arising out of a conviction before the learned Magistrate at Beenleigh, for an offence of disqualified driving. The trial occurred on the 15th of September 2009, and the decision was reserved on 24 September 2009. The learned Magistrate found the appellant guilty, fined her the sum of $950, and disqualified her from holding or obtaining a driver's licence for a period of two years.

The factual scenario in which this appeal arises is not essentially in dispute. On the 27th of April 2009 at around 8.30, the appellant was stopped for the purpose of a random licence check. She produced a Queensland Driver's Licence in her name, which had been issued by Queensland Transport on 23 March 2009, and she was also able to produce a receipt for that licence. Both items were tendered during the course of the trial.

Although a recording device which police activated at the scene, or attempted to activate, did not work, notes were made, and it is accepted by the prosecution that the appellant displayed surprise when told that she was disqualified at the time, from 16 December 2008 until 15 June 2009.

What is clear (and the transcript was tendered at the trial) was that in a hearing before another learned Magistrate at Beenleigh on 16 December 2008, the appellant was dealt with for unlicensed driving and disqualified for holding or obtaining a drivers licence for a period of six months.

The transcript of that hearing makes it clear that the appellant was present, and it can be inferred without doubt that she heard the disqualification, and in my view, as a matter of law was, from the point of the learned Magistrate indicating the sentence, subject to a disqualification in the state of Queensland, from holding or obtaining a driver's licence for six months.

The evidence before the learned Magistrate, in respect of the trial on disqualified driving, proceeded on a defence under section 24 of the Criminal Code; that is, honest and reasonable but mistaken belief in the state of things. In essence, the appellant's evidence was that she had made inquiries with Queensland Transport and that there was no disqualification period then current. She'd filled out the form, which I accept has some potentially misleading issues with it. In particular, although she revealed she was disqualified for six months, the form didn’t ask from what date she was disqualified, so there was no "red flag" for the Queensland Transport Department employee, who was dealing with the form; and further, she ticked a box which indicated that the driver's licence she'd had was, "lost", which is the vernacular reference that the average person in the street regularly uses to describe having been either disqualified or suspended, in respect of their driver's licence.

What is clear (and this evidence was given by the arresting officer, Constable Tunks, without objection) is that there was a delay updating the Queensland Transport records, which were not updated with the disqualification imposed by the learned Magistrate on 16 December 2008, and essentially the appellant was "lucky" in that when she reapplied for her licence, she struck a system that had not caught up with the fact that she had been disqualified on the 16 December 2008.

Now, the defendant was found guilty by the learned Magistrate who conducted the trial on the disqualified driving charge, on the basis that the defence run on her behalf, of an honest and reasonable mistaken belief of fact, was, in the learned Magistrate's view, negatived beyond reasonable doubt by the prosecution. However, in my view, the trial before the learned Magistrate proceeded on the wrong footing, because in my view, the issue was not whether there was an honest and reasonable mistake of fact (section 24 Criminal Code) but whether it was, in fact, a mistake of law (in which case section 22(1) of the Criminal Code provides that there is no defence).

The decision in Ostrowski v. Palmer [2004] 218 CLR 493 sets out very clearly (per McHugh J 518) the following:-"…without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law, rather than to a matter of fact. Accordingly, the fact that Mr Palmer's mistake was induced by the conduct of an employee of Fisheries WA, cannot convert what is a mistake of law into a mistake of fact. For the purposes of s. 24 of the Criminal Code, it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official Government body or from any other third party or is induced by any other form of mistaken factual understandings. Thus, in any situation where a person's mistaken belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under s. 24. To find otherwise would expand the scope of the defence in s. 24 to an unacceptable extent. It  would also undermine the principle that ignorance of the law is no excuse, a principle expressly provided for in s. 22 of the Criminal Code."

I note in passing, that the references in that decision to sections of the Criminal Code are to the Western Australian Criminal Code, but happily, the section numbering of that code and the Queensland Criminal Code are the same in respect of the two relevant sections; that is section 24 (honest and reasonable but mistaken belief of fact) and section 22 (ignorance of the law is no excuse).

Applying the analysis of Ostrowski and Palmer to the case before me, it is clear in my view that when the appellant appeared before the learned Magistrate at Beenleigh on 16 December 2008, and was disqualified for six months, that was a matter of law. The fact that she was physically issued with a driver's licence on 23 March 2009 (a driver's licence which was only issued to her because of the bureaucratic delays in updating the records as between the Department of Justice and the Department of Transport), that did not affect her legal status, and she remained a person disqualified from holding or obtaining a driver's licence in Queensland.

Although her successful application for a physical licence could be said to have induced her conduct (that is, led to her belief that she could go and drive again legitimately) the reality is that that does not provide her with a defence, because ignorance of the law is no excuse.

The proceedings under section 222 of the Justices Act are a re-hearing on the evidence before the learned Magistrate. However, having reviewed that evidence, it is clear, in my view, that the learned Magistrate erred in treating section 24 as a valid defence, although of course, his outcome (finding the defendant guilty) was, in my view, the correct outcome, but for a different reason.

In my view the defendant was, at all relevant times, disqualified from holding or obtaining a driver's licence in Queensland. That status never changed. Her belief that she was not disqualified was a question of law, not a question of fact, and she was, as I have found, properly convicted of the offence of disqualified driving.

If I am wrong in respect of the applicability of the section 22 ignorance of the law defence (or more properly, non defence) it is, in my view, inescapable, that a person who appeared in front of a Magistrate on 16 December 2008, and was disqualified for six months, would be - even though they may honestly not recall the date they appeared in Court, and therefore the date on which the six month disqualification expired, it would certainly not be a reasonable belief to consider that the disqualification was still not applicable on 23 march 2009.

I would have found, therefore, if I was prepared to accept that there was an arguable section 24 defence, that the applicant's belief, although perhaps honest, was most certainly not reasonable. However, I stress that in my view, the section 24 defence is not a viable defence, because section 22 very clearly, in my view, precludes that defence on behalf of the appellant, and accordingly, the appeal is dismissed.

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HIS HONOUR:  I order that the appellant pay the respondent's costs, fixed at $1,800.