Schulze v Commissioner of Police
[2011] QDC 275
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Schulze v Commissioner of Police[2011] QDC 275
Schulze v Commissioner of Police[2011] QDC 275
[2011] QDC 275
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DEVEREAUX SC
No 85 of 2011
EVANNA MAREE SCHULZE | Appellant |
and | |
COMMISSIONER OF POLICE | Respondent |
BRISBANE
DATE 02/11/2011
ORDER
HIS HONOUR: The appellant was charged that on 20 August, 2011, she drove whilst over the middle alcohol limit, but not over the high alcohol limit, contrary to section 79(1F)(a) of the Transport Operations (Road Use Management) Act (hereafter called TORUM).
On 20 September, 2011, she pleaded guilty in the Magistrates Court at Ipswich. She was convicted and fined, and disqualified from driving for four months.
She applied under section 87 of TORUM for an order that she be issued with a restricted licence. That application was refused, because the learned Magistrate considered that section 87(5)(d)(i) applied. This appeal is against that refusal.
A preliminary point is taken by the respondent that no appeal is available. That is, the appeal isn't competent because the refusal of the application is not an order within section 222 of the Justices Act, and section 4 of that Act.
I'm satisfied that the preliminary point is properly taken, and there is no appeal to this Court under section 222 from the refusal of the order.
First, I'll attempt to set out reasons for reaching that conclusion. And then I will address, in any case, the substantive issue.
A person may appeal to this Court, if aggrieved, as complainant, defendant or otherwise, by an order made by Justices "on a complaint for an offence or breach of duty": section 222 Justices Act.
An order is defined broadly in section 4 of that Act. The definition includes, "An order, adjudication, grant or refusal of any application, and any determination of whatsoever kind, made by a Magistrates Court. And any refusal by a Magistrates Court to hear and determine any complaint, or to entertain any application made to it."
The application for an order that the person be issued with a restricted licence is to be made on an approved form at the proceedings "in which the conviction is recorded against the applicant by reason of which the applicant is disqualified from holding or obtaining a Queensland Drivers Licence; and (b) in a case where the Court makes an order disqualifying the applicant from holding or obtaining a Queensland Drivers Licence - before the Court makes that order; and not otherwise": section 87(2).
Sub-section 87(3) provides that an order may be made at the proceedings in which the conviction is recorded, and, "In a case where the Court makes an order disqualifying the applicant from holding or obtaining a Queensland Drivers Licence, in conjunction with that order, and not otherwise."
The close relationship between the order disqualifying and an order directing that the person be issued with a restricted licence is confirmed in sub-section 87(11), which provides, "for the purposes of this section, the proceedings in which a conviction is recorded, are taken to continue until the Court has completed the exercise of its jurisdiction to sentence the defendant in respect of the conviction, notwithstanding that the proceedings have been adjourned."
On the application today, Mr Kissick for the appellant has submitted that the relationship between the period of disqualification and an order directing the issue of a restricted licence, is in practice and by force of subsection 87(6), a real one. Indeed subsection 87(6) provides that when a court makes an order for the issue of a restricted licence the maximum period is twice that which would otherwise apply.
Mr Kissick also points to the proceeding whereby the facts of the offence are heard upon the sentence proceedings, which are co-incidental to the hearing of the application for the direction of a licence.
There have been a number of appeals to this Court purportedly pursuant to section 222 of the Justices Act, against decisions either granting or refusing applications under section 87 or its earlier equivalent, and it seems the point simply has not been taken until now, that the appeal is incompetent.
The examples include the principal decision relied on by the parties in the substantive appeal Monley v. Dunn [1989] 10 QLR 106; Todd v. Commissioner of Police [2005] QDC 400; McDonald v. Queensland Police Service [2008] QDC 8.
On the other hand, I'm satisfied that the application for a section 87 order, and the making of an order, although co-incident to, and in conjunction with sentence proceedings, and an order for disqualification, nonetheless, are of a different quality.
The application is made on a specific form, and if an order is made, I am informed, an order quite distinct from a notation on the bench charge sheet or complaint is issued from the Court directing the issue of the licence.
I have been referred to several authorities to support the proposition that an order or the refusal to make an order, under section 87 is not an order made on the complaint. These include: Schneider v. Curtis [1976] QR 300; Owen v. Cannavan unreported CA No 199 of 1994; and Paulger v. Hall [2002] QCA 353. In that case, a Magistrate refused an application to amend a complaint. That led to a dismissal of the complaint. The prosecution appealed to a District Court judge who upheld the appeal. The defendant applied for leave to appeal to the Court of Appeal arguing that the District Court judge had no power to entertain the appeal under section 222 because "The ruling refusing amendment on which the appeal was in substance brought, was incidental": Holmes J at [25]. Her Honour said at [26] "Schneider v. Curtis is authority for the proposition that no appeal lies under section 222 from a ruling made on an incidental application during the hearing of the complaint. The right of appeal is given only from "any order made ... upon a complaint" and those words refer to an order "disposing of the complaint itself.”
Her Honour later considered that an appellant may, in an appeal against the final judgment, properly raise the issue of the correctness of an interlocutory order which affected the final result: [27].
The short point is that although made contemporaneously, an order under section 87 is not part of the sentence, and is not part of an order disposing of the complaint. It seems to me that its proper nature is that of an administrative Act. That is consistent with the apparent characterisation of the issuance of licences under TORUM. That is demonstrated by section 131, which provides that a person aggrieved by the refusal of a relevant officer to issue or renew a licence may appeal against that refusal to a Magistrate. The decision upon the appeal is final and binding, and without further appeal.
No other form of appeal is provided in TORUM that might refer to an order made or refused under section 87.
It seems to me that, properly understood, an order granting or issuing a licence, and so an order directing the grant or issue of such a licence, is an administrative act. So it is said by the respondent/Commissioner. The only remedy available to the appellant is judicial review.
I have considered that under the Penalties and Sentences Act [1992], a Court imposing a sentence may make various other orders. It's instructive that sentence is defined in section 4 of that Act as, "Any penalty or imprisonment ordered to be paid or served, or any other order made, by a Court, after an offender is convicted, whether or not a conviction is recorded."
It seems to me that by that mechanism, orders made under the Penalties and Sentences Act in conjunction with sentences of imprisonment or other penalties may be the subject of appeal because they are by definition part of the sentence. No such definition applies under TORUM. The relevant basis of appeal is that in section 222 which I've set out, and which I have already said does not include an order under section 87, because it isn't, in my view, an order on the complaint.
I reluctantly reach that view, because in the circumstances of this case, the appellant has for two months already been without the licence she sought. The period of disqualification was four months, and as I'm about to explain, I consider there is otherwise merit in the appeal.
The facts of the offence are briefly set out by the prosecutor in the Magistrates Court. At 9.25 a.m. police intercepted the appellant's vehicle, because she was speeding. She was travelling 93 kilometres an hour in an 80 kilometre zone. Police detected the smell of liquor, and a roadside breath test proved positive. She later underwent a further test, and at 10.09 a.m. she produced a reading of 0.126. She was on her way to work. She worked for a real estate agent. She was travelling from Ipswich to Auchenflower for that purpose. And the material in support of her application under section 87 made it plain that she required a licence for the purposes of her job, which included driving around to various rental properties.
It was common among the prosecution and the defence at the hearing in the Magistrates Court that the applicant was a fit and proper person. That is relevant because under section 87, sub-section 5, an application must not be granted unless the applicant satisfies the Court that she is a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally, and that a refusal would cause extreme hardship to her or her family by depriving her of her means of earning her livelihood.
There was no contest about those issues, although that was a matter for the learned Magistrate to decide, and he did not get that far because of the view he took that this was a case to which sub-section 87(5)(d) applied. It provides that an application for an order under section 87 must not be granted where the disqualification in respect of which the application is made resulted from a conviction of the applicant "for an offence committed while the applicant was engaged in an activity directly connected with the applicant's means of earning the applicant's livelihood."
His Honour was referred to several decisions, most importantly, the decision of Judge Boulton in this Court, in Monley v. Dunn. His Honour, with respect, correctly distinguished that decision on its facts, but, with respect, wrongly concluded that the principles did not govern this case. In that decision, Judge Boulton said, "The use of the words 'directly connected with' are such as to suggest a substantial connection rather than one which is merely accidental or incidental."
It is always dangerous to add, or to make further attempts to qualify or define the terms of a statute. And with great respect to his Honour, I'm not certain that that statement clarifies things.
At page 113, his Honour said, "In considering the applicability of [section 87 (5)(d)(i)] it is necessary to consider the means by which a particular applicant earns his livelihood, and then to consider the activity which he was engaged in at the time of the commission of the offence. There must be a direct and substantial connection. In the absence of such a connection, the particular head of exclusion will not apply." I respectfully adopt that as a useful articulation of what is in section 87(5)(d).
But again, there's no better approach to take then to address directly the words of the statute. A person is precluded from gaining an order under section 87 if the offence was committed whilst the person was "Engaged in an activity directly connected with the means of earning a livelihood." In this case, the appellant was driving to work.
It seems to me that there is a fundamental difference between driving to work and, even though, on the evidence here, she must have intended to drive while at work for her work purposes. The distinction between that driving and any driving she might have done at work. The activity she was engaged in was transporting herself to work.
The proposition that "transporting oneself to work" is engaging in an activity directly connected with the means of earning a likelihood, can be tested by asking whether driving oneself home from work fits the description. It's unlikely that an ordinary person would think that driving oneself home from work was engaging in an activity directly connected with the means of earning a livelihood, particularly when what one is considering is exclusion from an ameliorating provision.
The learned magistrate applied what he called a "but for" test. His Honour said, "To me the best way to approach it, in my view, is to look at perhaps a "but for" test. That is, but for the work, the employment, there would be no likelihood of the applicant driving her vehicle on this occasion. The one and only reason the vehicle is being driven was to get to work.” It may well be that his Honour made that statement in to distinguish the present case from others where the driving wasn't a straight forward driving to or from work. But I, with respect, consider that that analysis is wrong.
The real question is whether the activity was directly, not indirectly, connected with the means of earning. And in my view, driving oneself to work is properly understood as an activity indirectly connected with a means of earning a livelihood.
As I have accepted the respondent's argument that the appeal is in effect incompetent, the only order I can make is that it be dismissed. I have attempted to articulate reasons why I would have been satisfied that the appeal should succeed if I had the power to hear it, in case my decision on the preliminary point is wrong.
I have also considered whether, had I dealt with the appeal and found it to be successful, I should make an order under section 87, or return the proceeding to the Magistrate. It is unnecessary for me to go so far as to decide that, but it does concern me that because of his Honour's view of section 87(5)(d), his Honour did not get so far as to make a judgment about whether the appellant was a fit and proper person.
I accept the submission, Mr Kissick, that experienced practitioners were before his Honour, himself an experienced Magistrate, and there seemed no contest in the room, that section 87(5)(a) had been satisfied. Nonetheless, it seems to me that the particular circumstances of this case, including the driving to work with such a high blood alcohol reading, where it might be open to infer that the appellant intended to drive much more that day, could have an affect on the assessment of the question whether she was a fit and proper person to hold the restricted licence.
In any case, those comments are truly unnecessary. The only order I feel able to make is that the appeal is dismissed.
Any other orders sought?
...