McNamara v Queensland Police Service
[2012] QDC 372
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- McNamara v Queensland Police Service[2012] QDC 372
- Add to List
McNamara v Queensland Police Service[2012] QDC 372
McNamara v Queensland Police Service[2012] QDC 372
[2012] QDC 372
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DURWARD SC
No 50 of 2012
DAVID MYLES MCNAMARA | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
TOWNSVILLE
DATE 31/07/2012
JUDGMENT
HIS HONOUR: The appellant was convicted in the Magistrates Court at Gladstone on 6 February 2012 of a charge of driving a motor vehicle by more than 40 kilometres per hour in excess of the speed limit. He pleaded guilty to the charge and appeared by telephone link. He was not legally represented.
The Magistrate recorded a conviction but did not impose any further penalty. The recording of a conviction is a punishment for the purposes of section 222(2)(c) of the Justice Act 1886. Hence, the appeal is competent and regular. See Sparks -v- Hughes [2005] QDC 228 and Brown and the Attorney-General Queensland [1993] QCA 271.
On 17 May 2011 the appellant had been driving at a speed of 142 kilometres per hour on the Bruce Highway at Tannum Sands between Miriam Vale and Gin Gin. He was travelling southbound and at night-time. The speed limit in the area where the photographic detection device was located was 100 kilometres per hour.
The appellant's submission to the Magistrate, which he provided in documentary form and supplemented by an oral submission, described an extraordinary sequence of events.
He was driving en route from Townsville to the Gold Coast. He had in his possession 90 ounces of gold bullion of a value of about $126,000 for the purpose of finalising a real property purchase. Only he and the real estate agent knew about the gold bullion.
He explained that he encountered a life threatening situation. Another vehicle drove closely behind him with headlights on full beam and spotlights illuminated for a considerable distance. His vehicle was flooded with light and he was effectively blinded. He tried slowing down, making space to allow the other vehicle to overtake but finally increased his speed significantly to put a distance between his vehicle and the vehicle following him. He eventually slowed down to the speed limit but believes that the speed detection occurred before he did so but after the other vehicle had been left behind.
He was in fear of personal risk to his health because of the remote location at night-time on the highway, his not knowing the identity of, or number of the occupants of the other vehicle, his valuable cargo and the close proximity of the pursuing vehicle.
A vehicle, perhaps the same one, subsequently came up behind him near Miriam Vale and a repetition of the incident occurred although that vehicle turned off the highway near the township.
The Magistrate accepted this account as being true. That is the reason he did not impose a fine, which I understand would have been $933. It was open for the Magistrate to do what he determined to be appropriate in the circumstances.
The appellant is aggrieved about the conviction. However, his grievance is really about the imposition by legislation of a licence suspension of six months and the impact this would have on his capacity to continue in employment. Section 85(1)(a) and section 86(1) of the Transport Operations Road Use Management Driver Licensing Regulation 2010 provide that a person who has been convicted of driving more than 40 kilometres per hour over the speed limit has his licence suspended for six months.
There were no submissions made to the Magistrate about the non-recording of a conviction. It is common ground that the Magistrate was busy in Court and that the proceedings were rushed. The appellant was also at a disadvantage by appearing by telephone link. However, that was his choice so to do.
The first issue for the appellant is whether the legislative consequence of a suspension of licence flows automatically from the conviction upon a plea of guilty or from the recording of that conviction. The second issue for the appellant is whether there are grounds for the exercise of a discretion not to record a conviction pursuant to section 12 of the Penalties and Sentences Act 1992. Leave to adduce fresh evidence might be required.
The appellant is aged 47 years. His date of birth is 29 May 1965. He works as a security provider. His current licence in that occupation expires on 3 December 2012.
He has an unimpressive traffic record and has previously been disqualified from driving many times since 1982. The most recent cumulative disqualification expired on 18 June 2009.
He informed the Court that he cannot work in his engineering trade because of a back injury and his work as a security provider is limited to maintaining security for vehicles and equipment at remote construction sites. He said that he does not have a medical clearance for any other form of security work. He needs a driver's licence to travel to and from those construction sites, remote or otherwise.
The difficulty he faces in this appeal is that his conviction upon his plea of guilty is sufficient to cause the legislative consequence of the suspension of his driver's licence. It does not matter whether the conviction is recorded or not recorded. The Court has no jurisdiction in this appeal to consider or to interfere with the suspension order.
So far as the recording of a conviction is concerned, the appellant did not make any submission to the Magistrate. He made an oral submission on the appeal but without documentary or sworn material in support.
I would have to grant leave to adduce fresh evidence on the appeal if I was to consider that oral submission. However, the appellant's traffic record is a matter relevant to the exercise and discretion under section 12 of the Penalties and Sentences Act and mitigates strongly against its exercise. Hence, I have not asked Mr Hood to make any submission on behalf of the respondent.
In the circumstances, I will not grant leave to adduce fresh evidence. Hence there is, in effect, no basis upon which I can exercise a discretion under section 12 of the Penalties and Sentences Act.
The issue of a work licence was briefly raised in submissions however the appellant's traffic record makes him ineligible.
The consequence is that the grievance of the appellant is not able to be resolved in this appeal. The order is that the appeal is dismissed.