Austin v Commissioner of Police
[2017] QDC 159
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- Austin v Commissioner of Police[2017] QDC 159
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Austin v Commissioner of Police[2017] QDC 159
Austin v Commissioner of Police[2017] QDC 159
DISTRICT COURT OF QUEENSLAND
CITATION: | Austin v Commissioner of Police [2017] QDC 159 |
PARTIES: | CRAIG ANTHONY AUSTIN (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | 1/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court in Bundaberg |
DELIVERED ON: | 15 June 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 May 2017 |
JUDGE: | Devereaux SC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Justices Act 1886 – section 222 – appeal against conviction – where the appellant was convicted of driving without a licence as a repeat unlicensed driver – whether the appellant’s Victorian driver licence authorised him to drive in Queensland – whether the appellant had taken up residence in Queensland Transport Operations (Road Use Management) Act 1995 (Qld) s 78, Schedule 4 Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) s 19, s 128 Taylor v Commissioner of Police [2017] QDC 23 Teelow v Commissioner of Police [2009] QCA 84 The Queen v Baden-Clay [2016] HCA 35 Meissner v The Queen (1995) 184 CLR 132 |
COUNSEL: | The appellant appeared on his own behalf Mr J. D. Finch for the respondent |
SOLICITORS: | The appellant appeared on his own behalf ODPP (Qld) for the respondent |
- [1]The appellant was convicted of driving without a licence, an offence against s 78 of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’). The driving occurred on 6 November 2015. He had been convicted of driving without a licence on 6 August 2015, so he was a “repeat unlicensed driver”.[1] He was fined $450 and disqualified from driving for 1 month (the minimum disqualification period).
- [2]There is no challenge to the learned magistrate’s findings that the appellant drove a car on the Bundaberg Gin Gin Road at South Kolan on 6 November 2015. The appellant did not hold a Queensland driver licence. He held a licence to drive in Victoria. The issue was whether the licence issued in Victoria authorised the driving.
Driving a car in Queensland
- [3]A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.[2]
- [4]“Driver licence” means “an Australian driver licence”; which means:
(a)a Queensland driver licence; or
(b)a corresponding document to a Queensland driver licence issued under a corresponding law to the provision of this Act under which a Queensland driver licence is issued.[3]
- [5]Section 128 of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) (‘the Regulation’) provides that a valid non-Queensland driver licence authorises the holder to drive, on a Queensland road, a class of motor vehicle that the holder is authorised to drive under the licence. A non-Queensland driver licence means an interstate licence or a foreign driver licence.[4] If the holder takes up residence in Queensland, the authority is withdrawn, for an interstate licence, 3 months after the holder takes up residence.[5]
- [6]In the result, the question before the learned magistrate became whether the prosecution had proven[6] the appellant had taken up residence in Queensland at least 3 months before the driving, so that the authority to drive under the non-Queensland licence was withdrawn.
- [7]The legislative scheme does not allow a driver to hold a Queensland driver licence and an interstate licence. Section 19 of the Regulation provides that a person is not eligible for the grant of a Queensland driver licence if the person is the holder of a non-Queensland driver licence, unless the person gives the chief executive the driver licence.
- [8]The term “takes up residence” is to be understood in this statutory context. One cannot reside – at least for the purposes of a driver’s licence – in two places.
- [9]As the learned authors of Nygh’s Conflict of Laws in Australia write, residence is not a term of art but a question of fact. A court must, “when it has to consider whether a person is resident in a certain country for purposes of a particular rule ….. enquire what degree of connection was envisaged by the legislature when enacting the rule.”[7]
- [10]The evident purpose of the legislative scheme, whereby a person holding an interstate licence is authorised to drive in Queensland but not after taking up residence for three months or more, is to provide for a practical, reasonable balancing of the interests of the visitor or newly arrived resident against the interests of the State in the safe regulation of traffic, embodied in the objectives set out in s 3 of the TORUM Act.
The Magistrate’s Decision
- [11]The learned magistrate found the testimony “convincing” that the appellant and his witness, Rebecca Huggonson, resided at the property the appellant owned at South Kolan. His Honour found, beyond reasonable doubt, that the appellant had taken up residence in this State at that address.[8] His Honour referred to the appellant’s evidence that he purchased the property in 2012, that a fire destroyed it and he lived in a hotel for a couple of weeks and then for 11 months with a person named Lavering. His Honour accepted that the appellant “travels interstate and goes away at times; that evidence is supported by Ms Huggonson but it does not change the fact of his residency in Queensland.”[9] The learned magistrate also referred to the appellant’s evidence that he keeps personal property “that he utilises in his occupation of the premises”;[10] that he keeps motor vehicles there and has two locked shipping containers with items in them; that he has a tax address in New South Wales and that he has not been on the electoral role since he was aged 20 or 22 years.
- [12]The learned magistrate found that the appellant took up residence “well before the date of the driving”, 6 November 2015, and so his authority to drive on the Victorian licence had been withdrawn because he had taken up residence for more than three months.[11]
- [13]It is not clear whether the learned magistrate (1) approached the decision as one must approach a circumstantial case; and (2) took into account the effect of s 19 of the Regulation when deciding whether the appellant had taken up residence in Queensland. His Honour might have been aware of both matters but mentioned neither. The submissions made by the prosecutor below did not direct his Honour’s attention to them. In the result, I am satisfied there was error in the decision requiring my review of the record to decide whether the conviction should stand.[12]
The Prosecution Evidence
- [14]As to the previous conviction for unlicensed driving, the verdict and judgment record, Exhibit 1, showed that the appellant drove on 1 February 2015 and pleaded guilty on 6 August 2015. Before the learned magistrate, the appellant denied he had pleaded guilty to the earlier charge. The record shows he had.
- [15]The prosecution relied on the earlier plea to prove the appellant had taken up residence – the argument being that his plea was an admission of that fact. The learned magistrate referred to the verdict and judgment record as proof of the earlier conviction but did not expressly rely on the plea to conclude the appellant had taken up residence. In my opinion, the plea of guilty is a relevant fact from which to infer residency. It was an admission to all of the elements of the charge and the appellant has submitted no basis on which to conclude the conviction resulted in a miscarriage of justice. But a person might enter a plea of guilty for reasons other than an informed acceptance of each element of a charge.[13] Indeed, the transcript of the proceeding before the magistrate on 6 August 2015 shows that the appellant pleaded “guilty, but with an explanation”. The explanation was that he moved between Victoria and Queensland, that he owned property in New South Wales, Victoria and Queensland and that he held a Victorian licence. In the particular circumstances of the case, the earlier plea, while a relevant fact, should not bar the appellant from taking the residency point at his later trial of a similar charge.
- [16]
- [17]In the present case, the evidence included the recordings of the police officer who saw the appellant driving on 6 November 2015.[16] One can hear the officer tell the appellant the system still shows him recorded as a Victorian driver. The appellant says, “That’s right because I live down there and I live here”.
- [18]Senior Constable Fenton gave evidence that he had seen the appellant a few times, including on one occasion speaking to him about a ute he was selling. On 11 February 2016, Fenton spoke to the appellant, apparently in connection to another charge. On 6 March 2016, Fenton spoke to the appellant at his property. The recording of that encounter was tendered.[17] Among other things, the appellant told the police officers he had a Victorian licence and “I’m down there more than I’m here”.
- [19]During cross-examination, the appellant (appearing in person) asked Fenton, “Are you able to provide a letter from VicRoads that I don’t have a driver’s licence?”[18] The officer said he could not. The appellant asked whether the police had contacted VicRoads. The answer seemed to be that police had done so and a letter had been received on the morning of the trial, which was not tendered but was apparently to the effect that the appellant was licenced until 2018.
The Appellant’s Evidence
- [20]The appellant gave evidence that he never received a letter from Queensland Transport telling him he could not drive. He said he had not taken up residence in Queensland. He owned the property but had a caretaker looking after it. This was a reference to Ms Huggonson. He first said he bought the property in 2014 but later said it was 2012. He gave evidence about the house catching fire and staying in a hotel and then with a friend for 11 months. During this time the appellant said he went “away on a few odd occasions, have a break. Went to Sydney, went to Melbourne, went across to Adelaide.”[19]
- [21]He said the South Kolan property was not his full time residence. If it were, he would change his licence.
- [22]The appellant also said he could not drive trucks at the time because he had broken his foot and the plaster had only recently come off. He did not obtain a Queensland licence because he could not see the point of doing so, given that he was not in Queensland “for that long of the year”.[20] He said the property was up for sale but, in effect, the offers were too low.
- [23]Under cross examination, he agreed the rates for the property were in his name; he had two shipping containers “full of gear”;[21] and, clothes there “for when I come back”.[22] He said his mailing address for tax purposes was in Sydney. It had been that way since he worked for a firm named Turner’s Transport. He had not registered to vote since he was aged 20 or 22 years. The appellant agreed he originally held a Queensland licence but transferred it when he bought his property in Victoria. He explained that he referred to Ms Huggonson as his missus because she suffered from anxiety and “she’s sick of people hitting on her”;[23] and he furnished the place because he did not want to come back to a house that had no refrigerator, chairs or television.
- [24]The appellant called Rebecca Huggonson, who said she started living at the property in May 2015 but had been visiting since about May 2014. She explained that she was living at the property to house her goats. She had been living out at Bargara and staying at South Kolan on and off, “and eventually it just got too far so I moved to South Kolan permanently”.[24] Under cross-examination she said the reason she moved was that the appellant was away all the time and it was “a rent free opportunity”.[25]
- [25]As to the appellant’s presence, she said, “You were going away very regularly up until relatively recently when you had issues with your driver’s licence, and then you’ve suffered the injury to your foot. Other than that, you were away 99 per cent of the time and now you’re around far too often”.[26]
- [26]Under cross-examination, she said the appellant would be away, “At least 10 or 14 days at a time, and then he would come back and probably stay one day or two. Sometimes he was gone for months”.[27]
- [27]She said most of the furniture in the house was hers. The appellant had tools lying around. Apropos of nothing she said, “because I think he has a girlfriend or a partner in town”.[28] She was not cross-examined about her relationship with the appellant.
Discussion
- [28]The prosecution case – that the appellant had taken up residence in Queensland - was based on circumstantial evidence. The High Court has recently, in The Queen v Baden-Clay [2016] HCA 35, repeated the relevant principles, referring to Barca v The Queen (1975) 133 CLR 82 where Gibbs, Stephen and Mason JJ said:
"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen."’[29]
- [29]The alternative reasonable hypothesis raised by the appellant was that he resided in Victoria, not in Queensland.
- [30]The onus of proof was on the Prosecution, but, as five members of the High Court said in The Queen v Baden-Clay:
In the case of circumstantial evidence, the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence. However, where an accused person with knowledge of the facts is silent, then as was said in Weissensteiner v The Queen[30]:
"in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused."
That passage was quoted with approval in RPS v The Queen[31]. The significance to be attached to what was said in Weissensteiner must be understood in its context, as explained in Azzopardi v The Queen[32]. Weissensteiner was not simply a case in which the accused failed to contradict direct evidence of other witnesses. It was a case in which, if there were facts which explained or contradicted the evidence against the accused, they were facts which were within the knowledge only of the accused and thus could not be the subject of evidence from any other person or source.[33]
- [31]It may be said, in the present case, that the appellant alone carried knowledge of facts which might explain or contradict the facts which tended towards the conclusion that he had taken up residency in Queensland. He did not say, for example, for whom he worked. He did not produce any evidence of his employment base in Victoria; nor, if he were self-employed, the address of his business, the usual timetable of his driving, whether he employed others and if so, where.
- [32]On the other hand, the prosecution were on notice of the appellant’s position. He told police in November 2015 and February 2016 that he held a Victorian licence and he lived in Victoria. Also, the appellant gave evidence and thereby made himself available for cross-examination. The opportunity to examine the appellant’s assertion was barely taken up. For example, he was not asked when he recently lived in Victoria and for how long, nor whether he claimed the ‘principal place of residence’ stamp duty concession when purchasing the property. The appellant’s broad assertions were left unchallenged.
Conclusion
- [33]The Shorter Oxford Dictionary definitions of ‘reside’ include “To settle; to take up one’s abode; …. To dwell permanently or for a considerable time; to have one settled or usual abode, to live in or at a particular place”.
- [34]Certain aspects of the defence evidence were without detail or otherwise unpersuasive. These concerned, for example, the relationship between the appellant and Ms Huggonson, the asserted Victorian residence and the appellant’s persistent failure to acknowledge he had earlier pleaded guilty to the charge of unlicensed driving in August 2015. Nonetheless, the learned magistrate did not expressly find against the appellant’s credibility.
- [35]Upon my own review of the record, I cannot, particularly in the face of Ms Huggonson’s evidence, exclude beyond reasonable doubt the available hypothesis that the appellant had not, at the time of the relevant driving in November 2015, taken up residence in Queensland. The prosecution evidence demonstrated a substantial connection to Queensland but not that the appellant’s Queensland property was his “one settled or usual abode”.
- [36]I emphasise this conclusion is not a finding that the appellant lives in Victoria or has a primary place of residence there. Indeed, that the appellant is not registered to vote in that State tells against such a conclusion. My conclusion is only that, on the evidence presented on this occasion, there is reasonable doubt that the appellant had taken up residence in Queensland as I have explained that term.
- [37]The appeal will be allowed and the learned magistrate’s decision set aside.[34]
Footnotes
[1]Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’) ss 78(3)(h), 78(6).
[2]TORUM Act s 78
[3]TORUM Act Schedule 4.
[4]TORUM Act Schedule 4.
[5]Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) (‘The Regulation’) s 128(6).
[6] I proceed on the basis that when the question whether a driver holding an interstate licence has not taken up residence in Queensland is raised on the evidence, it is for the prosecution to prove they have.
[7] Martin Davies, Andrew Bell, Paul Le Gay Brereton and Peter Edward Nygh, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths Australia, 9th edition, 2014), [13.35] and see cases referred to by Long SC DCJ in Taylor v Commissioner of Police [2017] QDC 23 at [21 – 25]. It is tempting to segue into a discussion of domicile – “the technically pre-eminent headquarters that every person is compelled to have” in order that certain rights and duties may be determined. One of the assumptions of that statement is that a person cannot simultaneously have more than one domicile for the same purpose. (Nygh at [13.5]) A person may acquire a domicile of choice in a country if lawfully present there with the intention of making one’s home there indefinitely. The appellant disavows any such intention. But the focus of the legislation is on residence.
[8] Transcript of decision: 3.20.
[9] Transcript of decision (15 December 2016): 3.22 – 3.35.
[10] Transcript of decision (15 December 2016): 3.31.
[11] Transcript of decision (15 December 2016): 4.5-10.
[12]Teelow v Commissioner of Police [2009] QCA 84. Alternatively, I am required, in any case, to rehear the case on the record.
[13]Meissner v The Queen (1995) 184 CLR 132.
[14] Exhibit 3.
[15] Exhibit 5.
[16] Exhibit 2.
[17] Exhibit 4.
[18] Transcript of Hearing (15 December 2016): 1-53.28-29.
[19] Transcript of Hearing (15 December 2016): 1-62.23-25.
[20] Transcript of Hearing (15 December 2016): 1-63.5.
[21] Transcript of Hearing (15 December 2016): 1-63.34.
[22] Transcript of Hearing (15 December 2016): 1-63.30.
[23] Transcript of Hearing (15 December 2016): 1-64.33.
[24] Transcript of Hearing (15 December 2016): 1-67. 28-30.
[25] Transcript of Hearing (15 December 2016): 1-70.2.
[26] Transcript of Hearing (15 December 2016): 1-67.38-41.
[27] Transcript of Hearing (15 December 2016): 1-69.45-47.
[28] Transcript of Hearing (15 December 2016): 1-70.14.
[29]The Queen v Baden-Clay [2016] HCA 35, [46]. Case citations deleted
[30] (1993) 178 CLR 217 at 227‑228 per Mason CJ, Deane and Dawson JJ; [1993] HCA 65.
[31] (2000) 199 CLR 620 at 633 [27], 641 [54], see also at 654‑655 [104]; [2000] HCA 3.
[32] (2001) 205 CLR 50 at 73 [61]; [2001] HCA 25.
[33] [2016] HCA 35 at [50 – 51].
[34]Justice Act 1886 (Qld) s 225