Giffin v The Commissioner of Police
[2015] QDC 81
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- Giffin v The Commissioner of Police[2015] QDC 81
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Giffin v The Commissioner of Police[2015] QDC 81
Giffin v The Commissioner of Police[2015] QDC 81
DISTRICT COURT OF QUEENSLAND
CITATION: | Giffin v The Commissioner of Police [2015] QDC 81 |
PARTIES: | LEE GIFFIN (appellant) v THE COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD3876/14 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Caboolture |
DELIVERED ON: | 17 April 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 April 2015 |
JUDGE: | Samios DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – CRIMINAL LAW – ERROR OF LAW – EVIDENCE – where the appellant was charged with using a dealer plate contrary to section 64 of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) – where after a summary hearing the learned Magistrate found the appellant guilty of the charge and imposed a $500 fine on the appellant VEHICLES AND TRAFFIC – OFFENCES – REGISTRATION – where the appellant was driving a tow truck with a dealer plate attached to it to the wreckers in order to obtain parts for the truck – whether a truck with a dealer plate attached to it is travelling to or from a facility for repairs if the owner is using the truck to look for parts for the truck – whether the appellant’s conduct falls within the scope of ‘repairs’ in section 64(1)(c)(i) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) Legislation Justices Act 1886 (Qld) s 223(1), s 223(2) Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 (Qld) s 64(1)(c)(i) Cases Allesch v Maunz (2000) 203 CLR 172, [23] Mbuzi v Torcetti [2008] QCA 231, [17] |
COUNSEL: | The appellant represented himself Ms E Kelso for the respondent |
SOLICITORS: | The appellant represented himself Office of the Director of Public Prosecutions for the respondent |
- [1]On 9 September 2014 the appellant appeared before the learned Magistrate at Caboolture charged that on 18 April 2013 at Narangba he used on McPhail Road, Narangba a truck with a dealer plate attached to it contrary to s 64 of the Transport Operations (Road Use Management – Vehicle Registration) Regulations.
- [2]To that charge the appellant pleaded not guilty. After a summary hearing before the learned Magistrate the appellant was found guilty and fined $500 for the offence.
- [3]Section 64(1)(c)(i) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 provides:
- (1)A person must not use, or permit to be used, on a road a vehicle with a dealer plate attached to it unless the vehicle– […]
- (c)is travelling to or from a work shop or another facility for–
- (i)painting, repairs or motor body construction work
- [4]The particulars of the charge given by the police prosecutor were that the appellant was outside the legislation because he was at the particular location collecting parts as opposed to having work done (T1-9/5).
- [5]The appellant appeals from the decision of the learned Magistrate principally on the ground that the conditions of use of the dealer plate and trailer trade plates state a dealer is able to use his plate for painting, repairs or motor body construction work.
- [6]Another ground of appeal is that the appellant’s truck was at the location where the ticket was issued fitted with a trade plate while enquiring about tyre repairs and various other parts.
- [7]The appellant’s notice of appeal in addition alleges the learned Magistrate ruled against him as the police prosecutor took him into a room on two occasions telling him not to say or mention he was at Narangba Wreckers sourcing tyres. The appellant states he said to the judge do you really want to know why I was there and he said that you had your chance to say this before his ruling but I didn’t want to say anything remembering what the prosecutor said worried for my safety as he intimidated me on both occasions.
- [8]As a consequence of the implication made by the appellant in his notice of appeal that he was told by the police prosecutor not to say or mention he was at the location sourcing tyres and that he was intimidated by the prosecutor, the respondent has filed an affidavit of the police prosecutor in which the allegations raised by the appellant are disputed.
- [9]The police prosecutor does say in his affidavit that he did speak to the appellant. The police prosecutor states he pointed out to the appellant that he had changed his version during discussions he had with the appellant and he advised the appellant of the importance of telling the truth in court and that if he was found to be telling the court something that was not truthful then the consequences could be much more serious than the charge currently before the court.
- [10]However on the hearing of the appeal there was no affidavit by the appellant to support the allegations made in the notice of appeal. In my opinion the consequence is that it is unnecessary to receive the affidavit of the police prosecutor. In any event pursuant to s 223(2) of the Justices Act 1886 in my opinion there are no special grounds for giving leave to the respondent to adduce this evidence in the police prosecutor’s affidavit.
- [11]The case for the prosecution before the learned Magistrate relied upon the evidence of two witnesses and a number of documentary exhibits.
- [12]The principal witness for the prosecution was Senior Constable Benn. He told the learned Magistrate that on the afternoon of 18 April 2013 he was performing traffic duties in an unmarked police vehicle. He attended McPhail Road at Narangba to attend to speeding detection. A short time after arriving at that location he observed in his rear view mirror a tow truck pull up behind him. That tow truck had a registration plate JAP-44. He subsequently observed the vehicle park up. He saw the driver of the vehicle get out and walk across to a wreckers that was located across the road from his location. A short time later he observed what appeared to be an old registration label. He subsequently entered the registration number of the truck into the in-car computer system and that showed the vehicle to be unregistered. He got out of his vehicle and approached the tow truck just to confirm that he had seen correctly that the label was old or expired and at that time he also observed that there was a trade plate on the vehicle. His understanding of the trade plate was that it was a plate that is often used on vehicles that are unregistered so that businesses can perform their duties. The trade plate was G-176. He told the learned Magistrate that it struck him that the vehicle had nothing on its tray so in his opinion the vehicle was not performing the duties as it was allowed to do. It was not performing the function of a tow truck at that time. It did not have a car on the back of it and was not carrying anything at all which in his opinion at the time made the trade plate null and void. He returned to his vehicle and completed a traffic infringement notice for the vehicle being unregistered. He placed the traffic infringement notice under the windscreen wiper.
- [13]Senior Constable Benn also said that as a result of correspondence being received his officer in charge asked him to submit a report to him based on the information that came from the correspondence from the appellant. He submitted a report to his officer in charge requesting that the infringement that he had issued on 18 April be waived. There is no dispute the ticket was waived. As the evidence shows a different infringement notice for another offence was subsequently issued. That is the offence that charged the appellant with breach of s 64(1) of the Regulation.
- [14]A photograph showing the appellant’s truck with the registration plate JAP-44 and the trade plate on the rear of the vehicle was tendered in evidence. There was no dispute that is how the truck was when Senior Constable Benn wrote the infringement notice.
- [15]When Senior Constable Benn was cross-examined by the appellant who appeared for himself the appellant seemed to be very concerned about the appellant’s friend one Derek speaking to Constable Benn and telling him that the tow truck had a trade plate on it. As emerged during the proceedings before the learned Magistrate, the appellant’s concern was that Senior Constable Benn had overlooked the trade plate being attached to the truck. However as later emerged in an answer by Senior Constable Benn to a question from the appellant, Senior Constable Benn understood that for the appellant to come within the legislation the appellant had to be performing the function of a tow truck operator. Otherwise the appellant was having difficulty framing questions for Senior Constable Benn.
- [16]In addition, the prosecution called Senior Sergeant Eaton. Through Senior Sergeant Eaton, the prosecution proved a letter received under the signature of the appellant. It was received at the Mango Hill/North Lakes Police Station on 15 May 2013. In addition, Senior Sergeant Eaton said the original infringement notice was withdrawn because the allegation contained in that notice could not be substantiated. An adjudication was then made that the information received from the appellant allowed a different offence to be charged. The letter from the appellant was an exhibit before the learned Magistrate. The letter states:
On 18 April 2013 I got into my truck which was unregistered (as I am the proprietor of Japanese 4x4 Spare Parts) so I put my trade plate on and drove to Narangba Wreckers to purchase some parts to fix up my truck. I parked outside, behind a unmarked police car registration 075SJF. While I was buying the parts, Senior Constable Darren Benn issued an infringement notice to my vehicle. Derek Murray tried to explain to the officer that it was not registered but it had a trade plate on the back of the vehicle. Senior Constable Darren Benn did not even look or get out of his vehicle to inspect. He said ‘It’s too late mate I’ve already processed the infringement notice’. Derek Murray has taken a picture of the vehicle with the trade plate on it and the police car (075SJF) from the rear of the truck. I’m also forwarding the picture with this letter.
- [17]Senior Sergeant Eaton also said that he had a conversation with the appellant after the new infringement notice was mailed out. He said the appellant told him that he was there to purchase parts for his vehicle. He told him that he took his vehicle there to make sure that he got the right parts.
- [18]Three certificates were also tendered in evidence. The first was evidence that the registration of the vehicle JAP-44 was expired as of 6 March 2013. The next was evidence that the 2008 Isuzu series tray truck with a particular VIN number was not registered in Queensland as at 18 April 2013. The next was evidence that the dealer plate G-176 was current as at 18 April 2013 and was in the name of the appellant.
- [19]Again, as the appellant was unrepresented, his questions to Senior Sergeant Eaton did not appear to make out what his case was as expressed in the notice of appeal. That is, as the truck was at the location where the ticket was issued fitted with a trade plate to purchase some truck parts to fix up his truck he came within s 64(1) of the Regulation, specifically “repairs”.
- [20]When the appellant gave evidence, he said very little in his evidence regarding what appears to be the point in these proceedings. However, when he was cross-examined it seemed to be accepted his letter was accurate and that it provided evidence that he was there to purchase some parts to fix up his truck. He did agree he did not end up buying anything.
- [21]When the police prosecutor made submissions at the end of the case, he said the letter was akin to a confession in some regards. In addition, the police prosecutor submitted that if all someone is doing is going to a place to purchase parts (for example, if you go to Autobarn or Supercheap or the wreckers to pick up half a dozen things) you must use a car that is registered. He said you do not need to take that truck and that there was no purpose for having it there. He said the legislation does not allow the appellant to take his truck for that purpose simply there to purchase items. In addition, as part of the evidence the police prosecutor said the vehicle was parked across the road from the wreckers. It did not go into the workshop for any work to be done.
- [22]When the appellant made submissions, he said he went there to purchase “like, a taillight” and to work out tyre sizes “and that”. He said, “Like, I did nothing wrong. I own everything.”
- [23]When considering the evidence, the learned Magistrate said there was no evidence led that there was to be any painting, repair or motor body construction work to be undertaken to the vehicle. He noted the appellant said he was capable of performing that work himself and he had no need to do that. The learned Magistrate did note when arriving at his decision that the appellant had said that he put his trade plate on and drove to Narangba wreckers to purchase some parts to fix up his truck. Further the learned Magistrate said that did not seem to be encompassed within one of the permissible uses under s 64(1). The learned Magistrate said the legislation permits various uses of a truck with a dealer plate attached. However he said it does not permit simply going to various outlets to purchase parts. He accepted the submission of the police prosecutor that one cannot simply go down to Auto Cheap or Auto Parts and Super Cheap and drive around the country side with the dealer plate fitted to acquire parts. He said that is not the purpose of the issue of a dealer registration plate. He said it is confined to the purposes laid out in the legislation.
- [24]Therefore the learned Magistrate found to the necessary standard that the prosecution satisfied all elements of the offence and that there was an infringement of s 64 and found the defendant guilty.
- [25]Section 223(1) of the Justices Act provides this appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate.
- [26]In Allesch v Maunz [2000] 203 CLR 172 at para 23 the majority in the High Court said:
the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas in the latter case, those powers may be exercised regardless of error.
- [27]In addition in an appeal under s 223(1) the judge must:
afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions. (Mbuzi v Torcetti [2008] QCA 231, [17]).
- [28]In arriving at his decision the learned Magistrate did not determine whether one witness or the other was truthful or not. In my opinion that is because there was no dispute about the facts. That is there was no dispute that the appellant’s truck was not registered and that it had fitted to it a valid dealer plate in the name of the appellant. Further, the learned Magistrate did not reject the appellant’s letter nor what Senior Sergeant Eaton said the appellant told him were his reasons for being there. The case for the prosecution was based on what the appellant said were his reasons for being at the wreckers with his truck. That is the prosecution case was that on what the appellant said in his letter and to Senior Sergeant Eaton the appellant was not using the truck to travel to or from a facility for repairs. Therefore, the prosecution case was the appellant breached s 64(1) of the Regulation.
- [29]Therefore, in my view the point that arises in this appeal is whether the appellant came within “repairs” in s 64(1)(c)(i) of the Regulation.
- [30]The Regulation does not define what is meant by repairs. In the Macquarie dictionary the verb “repair” is stated to be to restore to a good or sound condition after decay or damage. A further meaning is to restore or renew by any process of making good. Finally another meaning is to remedy: make good.
- [31]In the New Shorter Oxford English dictionary the verb “repair” is given the meaning “the action or process of restoring something to unimpaired condition by replacing or fixing worn or damaged parts.”
- [32]What the appellant said was his purpose for using the truck on this occasion was not rejected by the learned Magistrate. Further, in my opinion what the appellant said was his purpose for using the truck on this occasion could not in the circumstances be rejected.
- [33]In my opinion “repairs” in section 64(1)(c)(i) of the Regulation is capable of including the use of the truck to be driven to the wreckers as the appellant did to look for parts for that truck. That is, having regard to the meanings of repair referred to earlier looking for parts for that truck is for the repair of the truck. In my opinion the fact that the appellant did not buy parts or have the truck repaired by the wreckers does not mean he breached s 64(1) of the Regulation. In my opinion the learned Magistrate fell into error when he concluded looking for parts for that truck was not within the Regulation.
- [34]There is some question that arises in this appeal about the appellant claiming he was told not to say that he was there looking for tyres. Further the appellant did say during his submissions (T1-42/10) that he went there to purchase a tail light and to work out tyre sizes and that. What he alleges he was told not to say by the police prosecutor and what he submitted he was there to do appears contrary to what was in his letter and what he told Senior Sergeant Eaton. My experience of the appellant is that he does express himself in a confusing way. However, in my opinion the fact remains that the case before the learned Magistrate was based on his letter and what he told Senior Sergeant Eaton and not these other issues. In my opinion it was on that letter and what he told Senior Sergeant Eaton that the appellant was to be dealt with in terms of evidence.
- [35]Even if the appellant was there looking for tyres or other parts for this truck, in my opinion, he would not have been in breach of the Regulation.
- [36]Therefore, in my opinion the learned Magistrate erred in law by finding the appellant breached s 64(1) of the Regulation.
- [37]In my opinion the learned Magistrate should have had a reasonable doubt about the appellant’s guilt and should have found the appellant not guilty of the offence.
- [38]Therefore I allow the appeal. I set aside the orders the learned Magistrate made on 9 September 2014. I find the defendant not guilty of the charge.