Valk v Commissioner of Police
[2016] QDC 200
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- Unreported Judgment
- Appeal Determined (QCA)
- Valk v Commissioner of Police[2016] QDC 200
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Valk v Commissioner of Police[2016] QDC 200
Valk v Commissioner of Police[2016] QDC 200
DISTRICT COURT OF QUEENSLAND
CITATION: | Valk v Commissioner of Police [2016] QDC 200 |
PARTIES: | MICHAEL JOHANN VALK (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | Brisbane 14/16 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Ipswich |
DELIVERED ON: | 9 August 2016 |
DELIVERED AT: | District Court, Brisbane |
HEARING DATE: | 10 June 2016 |
JUDGE: | Butler SC, DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL – appeal against conviction for speeding – appeal against sentence |
COUNSEL: | The appellant appeared on his own behalf W M Slack for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent |
- [1]The appellant was convicted in the Magistrates Court, Ipswich on 12 August 2015 of driving while disqualified by court order from holding or obtaining a driver’s licence.
- [2]On that occasion the appellant pleaded guilty before Magistrate Shearer to driving over the 100 kilometre per hour speed limit and to using an unregistered vehicle. He pleaded not guilty to the driving whilst disqualified charge and to a contravene requirement charge and defended those charges in the hearing before the Magistrates Court. The learned Magistrate also dealt with a breach of bail by failing to appear.
- [3]The appellant admitted before the Magistrate to driving his car on 12 October 2014. His Honour received in evidence a certificate in proof of the appellant’s disqualification by court order on 16 July 2014 from holding or obtaining a driver’s licence for six months. The appellant did not challenge those matters but sought to argue that his conviction on 16 July 2014 was in error as the demerit point suspension which gave rise to that original conviction was in error.
- [4]The appellant elected to be sworn and give evidence before Magistrate Shearer. He testified that he had received licence demerit points when driving a company hire vehicle but that the infringements were made by other drivers. He claimed that he tendered a traffic camera bureau letter indicating waiver of those fines to the Magistrates Court on 16 July 2014 but was nevertheless convicted. He testified before Magistrate Shearer as to events following his conviction on 16 July 2014:
“Then I immediately went into an appeal. That’s when I engaged the barrister to go on with that and the barrister, in the interim because it was under appeal, arranged that the licence was still in force. And I can assure you I made enquiries with the traffic bureau as to whether that was the case and they said that the licence was still in place and that’s when I went on the road. And then I was picked up by a traffic patrol …”[1]
- [5]The learned Magistrate found the appellant guilty of the offence of disqualified driving. His Honour held that the driving on 12 October 2014 and the appellant’s disqualification for a period of six months from 16 July 2014 were matters proven beyond reasonable doubt. The Magistrate reasoned that “the only issue relevant to this court today is whether or not at the time of the driving, he was disqualified by court order. The reasons for it are not relevant.”
- [6]The appellant was convicted and a single fine of $1500 was imposed on the four offences of disqualified driving, speeding, driving an unregistered vehicle and failure to appear. An order was made disqualifying the appellant from driving for a period of two years. That period was the mandatory minimum disqualification set by the legislation where there is a conviction for driving when disqualified by court order.
The appeal
- [7]A notice of appeal was filed on 4 January 2016 in respect of the unlicensed driving charge. It is an appeal against the conviction on 12 August 2015 and the sentence of $1500 fine and two years’ disqualification from driving imposed on that date.
- [8]The grounds for appeal are:
“The learned Magistrate erred in law in finding the defendant did not hold a licence to drive a motor vehicle, based on the mistake made by Queensland Transport to erroneously suspended [sic] licence.”
- [9]It is clear that although the appellant only challenges the conviction for the disqualified driving offence, he seeks to appeal the whole sentence. As the fine of $1500 was imposed collectively in respect of four offences it is necessary to approach the appeal against sentence as being in respect of all four offences. The appellant expressed himself as being particularly concerned to have the two year disqualification overturned, but that will only be possible if the conviction on the disqualified driving offence is set aside, as for that offence the Act imposes a mandatory minimum disqualification: s 78(3) Transport Operations (Road Use Management) Act 1995 (“TORUM”).
- [10]As the appeal was filed out of time, an application for an extension of time in which to appeal was filed on 6 January 2016.
The test to be applied upon appeal
- [11]The Court of Appeal in White v Commissioner of Police[2] conveniently summarises the principles that are applicable in dealing with an appeal under s 222 of the Justices Act 1886:
“The appeal brought by the applicant to the District Court under s 222 of the Justices Act was an appeal by way of rehearing, as provided for in s 223 of that Act. On such an appeal the District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view.”
- [12]The Court later in that judgment continued as follows:
“In the appeal to the District Court, s 223 of the Justices Act provides for a rehearing on the evidence given at trial, and any new evidence produced by leave. That is a rehearing, in the technical sense consisting of a review of the record of the proceedings below, rather than a completely fresh hearing. To succeed on such appeal an appellant must establish some legal, factual or discretionary error.”[3]
- [13]This appeal will be determined in accordance with those principles.
The prosecution case
- [14]The material relied on by the prosecution on the appeal consisted of the transcript of proceedings before Magistrate Shearer in the Magistrates Court at Ipswich on 12 August 2015, the transcript of the Magistrate’s decision, the affidavit of Vivash Naidu dated and filed 9 June 2016 and the following documents comprising the record of proceedings brought by the appellant in the District Court were also relied upon:
“(a)notice of appeal filed on 5 November 2014 against conviction entered on 16 July 2014 on a charge of driving without a licence – demerit points;
- (b)transcript of decision of Rackemann DCJ delivered on 24July 2015 striking out the appeal filed on 5 November 2014;
- (c)notice of application to the District Court dated 18 December 2015 to set aside the decision of Rackemann DCJ;
- (d)notice of appeal in the present proceedings filed 6 January 2016; and
- (e)order of Ryrie DCJ dated 13 January 2016 dismissing the application filed on 18 December 2015 seeking to have Judge Rackemann’s decision set aside.”
- [15]It is relevant to observe that the driving the subject of the present appeal is alleged to have occurred on 12 October 2014- about three weeks before the notice of appeal against the decision imposing six months’ disqualification was filed.
Appellant’s case
- [16]The appellant was invited to elaborate on his grounds for appeal. He was not legally represented and therefore struggled to clearly articulate why the appeal should succeed. I am satisfied his grounds fall under two heads:
- (a)the original conviction on 16 July 2014 before Magistrate Simpson in the Magistrates Court at Ipswich resulting in a six months’ disqualification was made in error; and
- (b)the appellant was justified in driving on 12 October 2015 as he was given advice by his barrister and the traffic bureau that caused him to believe his licence was still in force at that time.
- [17]The appellant elected to give evidence and be cross-examined. He testified that he was present on 16 July 2014 when convicted and sentenced in the Magistrates Court at Ipswich. He admitted to being aware on that occasion he was disqualified for a period of six months. He further admitted that he was driving on 12 October 2014 and was dealt with for that driving in the Magistrates Court at Ipswich on 12 August 2015.
- [18]He provided the following explanation for why he drove after being disqualified:
“My line of thinking, your Honour, after receiving advice from my legal counsel is until the case had been dealt with by a court that could consider the information, the document proof of my not losing the licence under the suspension that was wrongfully – I was wrongfully indicated for – until that evidence was heard, that in the process of the court dealings, that the licence remain in place until the final hearing. I did not deem the hearing to be the final hearing because I immediately stated at the end of that case that I wanted to appeal it with the information that would act as my defence.”
The issues
- [19]The appellant has raised two issues for resolution on this appeal. The first relates to the validity of the original conviction on 16 July 2014 resulting in six months’ disqualification.
- [20]Magistrate Shearer held that the earlier conviction could not be reviewed by him. His Honour found that the entry of a conviction on the earlier occasion was proven and he therefore proceeded on that basis without further considering the validity of that conviction.
- [21]The second issue contended for by the appellant is that he acted on advice that he was entitled to drive notwithstanding the Court having ordered his disqualification as a driver. That excuse was initially raised in the Magistrates Court but was not developed in the argument that followed before Magistrate Shearer and was not referred to in His Honour’s reasons for decision.
Consideration – challenge to the initial conviction
- [22]The conviction and penalty imposed by Magistrate Simpson on 16 July 2014 was the subject of an appeal to the District Court filed on 5 November 2014. On 24 July 2015 Judge Rackemann struck out the appeal for want of prosecution when the appellant failed to appear. An application to set aside Judge Rackemann’s order was dismissed by Judge Ryrie on 13 January 2016.
- [23]This appeal is against conviction and sentence imposed by the Magistrates Court on 12 August 2015. It is not an appeal against the earlier conviction and sentence. Evidence of the earlier conviction and sentence was received on this appeal in proof of the disqualification imposed on that earlier occasion.
- [24]The order for disqualification imposed by Magistrate Simpson on 16 July 2014 has not been disturbed on appeal. The appeal against it was dismissed. The appeal to this court is in relation to a different conviction. This court has no power to review the decision to dismiss an appeal by another District Court judge and therefore is unable to reconsider the correctness of the earlier conviction and sentence.
- [25]In any event, as at 12 October 2014 there was a valid order of disqualification. A court order, even if made in error, continues to have effect unless and until set aside on appeal: see McIntosh v Winston [2011] QCA 209 at [49] where a SPER suspension was held to apply even though under challenge.
- [26]There is no substance in the applicant’s first ground of appeal.
Consideration – justification for driving when disqualified
- [27]The appellant does not challenge the factual basis that he was driving on a date within six months of the order of disqualification imposed on 16 July 2014. However his evidence raises for consideration whether an excuse under s 24 of the Criminal Code applies.
- [28]This appeal is by way of rehearing and as such it is necessary I give independent consideration to the evidence on the record of proceedings before the learned Magistrate and any further evidence received before me. In particular, this included the testimony of the defendant at the appeal hearing. The onus of proof beyond reasonable doubt falls on the prosecution. The prosecution must exclude beyond reasonable doubt any matter of excuse raised on the evidence. Here the prosecution must exclude mistake of fact beyond reasonable doubt.
- [29]A mistake under s 24 must be both honest and reasonable. In considering the defence under s 24 I have had regard to all the evidence but particularly the testimony of the appellant. He testified that based on what he was told by his barrister and the traffic bureau he believed he was entitled to drive.
- [30]The prosecutor did not challenge the appellant’s credibility,[4]but did submit that his belief was unreasonable.
- [31]The appellant’s explanation as to his reliance on the barrister’s advice was confusing. He accepted that an appeal against Magistrate Simpson’s order was not filed until 4November 2014 at a time after the date of the driving the subject of the present appeal. I note that the notice of appeal was filed by a solicitor acting on his behalf. Mr Valk testified he acted on a barrister’s advice. It appears from the appellant’s testimony that due to his lack of funds the barrister ceased to act for him at some point.
- [32]Under cross-examination the appellant testified as follows:
“Q – Mr Todman who was aware of the disqualification ordered in July 2014 told you that your licence wasn’t suspended because the appeal hearing was in place. Is that correct?
A – Yes.
Q – When is this conversation? I’m sorry?
A – As soon as – as soon as I came out of the sentence being read, I-I asked him his advice and all that and I wanted him to go on with my legal counsel and he advised me as on previous occasions when the case was being heard that in the process of the case being heard, that my licence would be intact. That I would be able to go on with my driving.
Q – And he told you that after the decision by Mr Simpson on 16 July?
A – Yes. And – and I also went in and made inquiry with the traffic – the licencing bureau and asked what the status of my licence was and at that stage also because there was no ruling handed down by the court, they simply said because there’s nothing to the contrary my licence was in place. That’s when I went back to driving.”[5]
- [33]It was put to the appellant that the appeal was not on foot when he drove. Referring to advice from counsel he said:
“Q – Regardless of your conversation with the traffic bureau, if you received advice from a qualified barrister – inconsistent advice mind you – saying your licence is disqualified, however, you shouldn’t drive as well. You just stated that you received both of those advice from Mr Todman?
A – Well, there was – there was points in the – in the applications to the Court when he said do not drive. When the applications to the Court were in place with the administration, he said, “you’re released to drive.” I took him at his word every time. And when I believed he was no longer my legal counsel, then I made enquiries with the licence bureau and said, you know, I need to know whether I’m lawfully able to drive because I need to go for, you know, a work trip into the country.”[6]
- [34]On one view of this evidence, Mr Valk assumed on this occasion he could drive because of advice provided on earlier occasions by his barrister, Mr Todman, that he could drive on those occasions. Taken at its highest, Mr Valk’s evidence is that Mr Todman gave him advice that notwithstanding the order he could still drive.
- [35]It was submitted for the prosecution that as the appellant had been told on some occasions by counsel not to drive it was unreasonable for him to do so on this occasion when he had not received specific advice.
- [36]The second basis relied upon by the appellant was advice he claimed he received from the traffic bureau that his record did not show any impediment to his driving.
- [37]It somewhat strains credulity that the appellant was given the advice from experienced counsel which he claims to have received. However, the prosecution chose not to challenge his credibility. I accept his evidence that he acted on his understanding of the legal advice his received. Furthermore his testimony as to what he was told by the department is unchallenged on the evidence. In my view, it would not be objectively unreasonable for a person to act on advice received from a government officer. So too, taking the appellant’s evidence at its highest, it would not be unreasonable for him to act on legal advice received from his counsel.
- [38]The prosecution has failed to disprove beyond reasonable doubt that the defendant’s mistake was honest and reasonable.
Mistake of law or fact
- [39]One final issue remains for determination. Section 24 only excuses a mistake as to a belief in the existence of any stated fact.
- [40]If the appellant’s mistake was about the legal effect of the court order of disqualification it would follow that it was a mistake of law.
- [41]It was held in Ostrowski v Palmer (2004) 218 CLR 493, per McHugh J at 518 that:
“…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.”
- [42]That passage was cited with approval in Lee v Commissioner of Police [2010] QDC 275 by Dearden DCJ. In that case His Honour found that a person who drove while disqualified in reliance upon a driver’s licence mistakenly issued during the period of the disqualification could not rely upon s 24, as her mistake was one of law.
- [43]Although the appellant’s explanations to Magistrate Shearer set out at [4] might be interpreted as saying that some action was taken by his barrister to ensure his licence remained valid, I am satisfied on the whole of the evidence that was not his belief at the time. I find the appellant understood the barrister to be expressing an opinion that the appellant was entitled in law to drive on the existing licence. Such a belief was a mistake of law not a mistake of fact. It follows that the appellant is not excused from criminal responsibility for his acts even though he mistakenly believed he was entitled to drive at the time.
- [44]In the circumstances I will grant leave to appeal out of time but the appeal against conviction must be dismissed.
Appeal against sentence
- [45]I have found that the appellant’s offending resulted from a mistake of law, but that he was acting honestly and reasonably in believing he was entitled to drive. In those circumstances only a nominal penalty should be imposed for the disqualified driving offence. The substantial fine of $1500 is primarily due to the disqualified driving offence.
- [46]The appeal against sentence should be allowed and the sentence of $1500 fine set aside. The defendant admitted to speeding at 19 kilometres per hour in excess of the 100 kilometres per hour limit and to driving an unregistered vehicle.[7]The appropriate level of fine for those two offences is $500.
The disqualification
- [47]It remains to consider the disqualification for a period of two years which was imposed on the driving whilst disqualified offence. That sentence, as was observed above, is the mandatory minimum period of disqualification provided for under the Act. Section 78(3) of TORUM provides that “whether or not any other sentence is imposed” the court must impose the mandatory disqualification. That provision came into operation in its present form on 5 September 2014, prior to commission of the subject offence. As the conviction for the disqualified driving has not been disturbed, I have no power to vary the sentence of two years’ disqualification imposed by the Magistrate. Accordingly, the disqualification for a period of two years will stand.
Orders
- [48]The orders of the Court will be as follows:
- An extension of time in which to appeal is granted.
- The appeal against conviction is dismissed.
- The appeal against sentence is allowed. The sentence imposed in the Magistrates Court is varied only to the extent of substituting a fine of $500 for the fine of $1500.
- The two year disqualification from driving is not disturbed.
- No order as to cost.