Phillips v Commissioner of Police
[2010] QDC 74
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- Phillips v Commissioner of Police[2010] QDC 74
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Phillips v Commissioner of Police[2010] QDC 74
Phillips v Commissioner of Police[2010] QDC 74
DISTRICT COURT OF QUEENSLAND
CITATION: | Phillips v Commissioner of Police [2010] QDC 74 |
PARTIES: | STEVEN TOD PHILLIPS APPLICANT V COMMISSIONER OF POLICE RESPONDENT |
FILE NO/S: | 58/2009 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Beenleigh Magistrates Court |
DELIVERED ON: | 4 February 2010 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 4 February 2010 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal allowed. Order that the appellant be disqualified from holding or obtaining a driver’s licence for a period of six months be set aside. Each party bear their own costs. |
CATCHWORDS: | APPEAL – where the learned Magistrate did not seek submissions from the appellant – where there is a breach of natural justice – where the learned Magistrate did not have the power to disqualify the appellant’s licence – where offence is not in connection with the driving of a motor vehicle. |
LEGISLATION: | Penalties and Sentences Act 1992 (Qld) |
CASES: | R v. Nhu Ly [1995] QCA 139 |
COUNSEL: | A.E. Cappellano for the appellant. G.J. Churchill for the respondent. |
HIS HONOUR: The appellant, Steven Tod Phillips, appeared before the Beenleigh Magistrates Court on 16 April 2009 in respect of one charge of possession of dangerous drugs. In addition to being fined the sum of $750, the appellant was disqualified from holding or obtaining a driver licence for a period of six months. The appeal relates solely to the driver licence disqualification.
The issue of a potential disqualification arose because the appellant was driving a prime mover when pulled over for speeding by police at Slacks Creek on 3 December 2008. When asked by investigating police if he had anything to declare, the appellant handed police a container with a clip-seal plastic bag containing seven grams of white powder which, on analysis, proved to be 0.371 grams of methylamphetamine. The appellant stated that he occasionally used amphetamines to stay awake (Transcript 1-2).
The appellant appeared unrepresented before the learned Magistrate on the plea. The Prosecutor raised the issue of disqualification in submissions (Transcript 1-3); the learned Magistrate did not seek submissions from the appellant on this issue (Transcript 1-3); and after interrupting brief submissions from the appellant on other matters (Transcript 1-3, 1-4) imposed a fine of $750 and a disqualification of six months (Decision 1-2).
The power to impose a disqualification arises from the provisions of the Penalties and Sentences Act s. 187(1) - "If-
- (a)an offender is convicted of an offence in connection with, or arising out of, the driving of a motor vehicle by the offender; and
- (b)the court by or before which the offender is convicted is satisfied having regard to the nature of the offence, or to the circumstances in which it was committed, that the offender should, in the interests of justice, be disqualified from holding or obtaining a Queensland driver licence;
the court may, in addition to any sentence that it may impose, order that the offender is, from the time of the conviction, disqualified absolutely, or for such period as is ordered by the court, from holding or obtaining a Queensland driver licence."
In my view (a view supported by the submissions of both the appellant and the respondent), the learned Magistrate did not have the power to disqualify the appellant's licence because the offence was not "in connection with, or arising out of, the driving of a motor vehicle." The appeal must therefore succeed on this ground (see R v. Nhu Ly [1995] QCA 139 per McPherson JA pp7-8, Thomas JA pp 9-10).
I should note that a judicial officer considering imposing a disqualification in such circumstances should, at a minimum, request specific submissions on the issue, and the failure to do so amounted to a clear breach of the rule of natural justice (R v. Cunningham [2005] QCA 321 per Keane JA, p. 5). A disqualification, particularly for a professional driver, is a catastrophic outcome, and even with a busy court list, the appellant should have been made clearly aware what the learned Magistrate was considering and should have been given the opportunity to respond or perhaps, of course, to seek an adjournment and legal representation at an adjourned date. Such an adjournment in this case would clearly (assuming the appellant had appropriate legal advice) have resulted, among other things, in submissions that the proposed disqualification was beyond the learned Magistrate's power in the circumstances.
It is clear therefore that the appeal should be granted and the disqualification order set aside. I order as per draft which I've initialled and placed with the papers, but which I note for the record is as follows:
- The appeal be allowed;
- The order that the appellant be disqualified from holding or obtaining a driver's licence for a period of six months be set aside;
- Each party bear their own costs.