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- Scrivens v Queensland Police Service[2017] QDC 189
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Scrivens v Queensland Police Service[2017] QDC 189
Scrivens v Queensland Police Service[2017] QDC 189
DISTRICT COURT OF QUEENSLAND
CITATION: | Scrivens v Queensland Police Service [2017] QDC 189 |
PARTIES: | RENAE SCRIVENS (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 4102 of 2016 |
DIVISION: | Criminal |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Holland Park |
DELIVERED ON: | 14 July 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 June 2017 |
JUDGE: | Smith DCJA |
ORDERS: |
|
CATCHWORDS: | TRAFFIC LAW – Driving unlicensed – proof of charge – whether mistake as to whether holds a licence a mistake of fact or law Acts Interpretation Act 1954 (Q) ss 14A, 39, 39A Criminal Code 1899 (Q) ss 22, 24 Evidence Act 1977 (Q) s 95 Justices Act 1886 (Q) ss 222, 223 Transport Operations (Road Use Management) Act 1995 (Q) ss 78, 124, 127 Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Q) ss 75, 79, schedule 3B Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (NT) (2009) 239 CLR 27 Carolan v Cohen [2011] QDC 103 Cook v Commissioner of Police (2012) 220 A Crim R 444; 60 MVR 436; [2012] QCA 118 Parsons v Raby [2007] QCA 98 Teelow v Commissioner of Police [2009] 2 Qd R 489 |
COUNSEL: | Self-represented appellant Ms E. Adams for the respondent |
SOLICITORS: | Self-represented appellant Director of Public Prosecutions (Qld) for the respondent |
Introduction
- [1]This is an appeal against the decision of a magistrate at the Magistrates Court at Holland Park to convict the appellant of two counts of driving of a motor vehicle without a driver licence demerit points (Queensland licence).
- [2]In order for the appellant to succeed on this appeal, the appellant needs to establish that the decision is a result of a legal, factual or discretionary error.[1]
- [3]Also s 223 of the Justices Act 1886 (Q) provides that this appeal is by way of rehearing. This requires this court to conduct a real review of the proceedings, the evidence and the decision of the learned magistrate giving due weight to the magistrate’s decision.[2]
Charges
- [4]The appellant was charged with the following charges:
“Charge 1: That on the 18th day of December 2015 at Mansfield in the Holland Park division of the Brisbane Magistrate’s Court district in the state of Queensland [the defendant] did drive a motor vehicle, namely a motor car on a road, namely Dirkala Street Mansfield [the defendant] not being at that time the holder of a driver licence authorising her to drive that vehicle on the road and at the time of committing the offence [the defendant] was disqualified from holding or obtaining a driver licence because of the allocation of demerit points and it is averred that the said motor car is a motor vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Dirkala Street is a road as defined in Schedule 2 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 18th day of December 2015 [the defendant] was not the holder of a driver licence authorising her to drive the said motor vehicle on the said road.[3]
Charge 2: That on the 18th day of December 2015 at Mt Gravatt East in the Holland Park division of the Brisbane Magistrate’s Court District in the state of Queensland [the defendant] did drive a motor vehicle, namely a motor car on a road namely Condong Street Mt Gravatt East [the defendant] not being at that time the holder of a driver licence authorising her to drive that vehicle on the road and at the time of committing the offence [the defendant] was disqualified from holding or obtaining a driver licence because of the allocation of demerit points and it is averred the said motor car is a motor vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Condong Street is a road as defined in Schedule 2 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 18th day of December 2015 [the defendant] was not the holder of a driver licence authorising her to drive the said motor vehicle on the said road.”
- [5]
- [6]The prosecutor tendered Exhibit 1. This was a certificate certifying:
- That on 18 December 2015 there was not in force a driver licence issued under the TORUM Act and the Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 to the defendant, date of birth 3 March 1974, driver licence number 035518061.
- As at 18 December 2015, 0855 hours, driver licence number 035518061 held by the defendant was suspended under the Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 as a result of the accumulation of demerit points. The suspension was for a period of 3 months effective on and from 4 November 2015 and expiring on 3 February 2016.
- [7]Exhibit 2 was a certificate under s 95 of the Evidence Act 1997. This certified:
- That on 7 October 2015 a written accumulation of demerit points – learner licence – notice of driver licence suspension was given to the defendant, date of birth 3 March 1974, driver licence number 035518061 by sending it by post to her last known address, namely 51 Canterbury Street Mt Gravatt East Queensland.
- On 4 November 2015 a written notice of confirmation of driver licence suspension was given to the defendant, date of birth 3 March 1974, driver licence number 035518061. This notice was given by sending it by post to the last known residential address recorded by the Department of Transport and Main Roads, namely 51 Canterbury Street Mt Gravatt East Queensland.
- The documents were not returned unclaimed to the Department of Transport and Main Roads.
- The Department had 51 Canterbury Street Mt Gravatt East as the defendant’s address.
- [8]Also tendered was Exhibit 4. This was a recording of the interception of the appellant by police at Condong Street Mount Gravatt East at 8.49am. The appellant, shortly after her interception, told the police that her driver licence was “all good” and handed over her licence. The police checked on her licence via computer and discovered she was demerit point suspended as at the previous month. The police officer advised the appellant that her licence had been suspended as at 4 November 2015 but she alleged that she was not aware of this. The police showed her the computer screen and told her that she only had four points on her provisional licence, which she had lost. The police advised her that they could take her number plates, she would not be able to drive from that location, that she had to be given a court notice and she was told again that she could not drive. The appellant asked what she could do and she was told she had to get a taxi. The appellant said that she had to start work at 9.30am and whether she could get a temporary licence and she was told that she could not. The police said that they could park the car off the main road but she could not drive and at the moment she had been suspended for 3 months. At 9.07am the notice to appear was explained to the appellant and she was given a notice to provide particulars, namely fingerprints, at the Upper Mount Gravatt Police Station. She said she would not drive and she was told again not to drive as she was demerit point suspended. At that stage the police were not going to take her car because her kids were with her.
- [9]Despite this, at 9.16am she was intercepted again by police.[6] The female police officer spoke to the appellant, telling her “I knew you were going to drive.” The appellant did not seem to wish to listen to the police. The police officer asked her to listen to what she was saying and told the appellant that they had driven around the block and they had stopped her again and she was driving unlicensed. The female police officer told her that they had given her the opportunity to park. She was told she should catch a taxi as she was unlicensed. The appellant alleged she did have a licence and the police officer said “no you don’t have a licence, we intercepted you five minutes ago and told you, you do not.” She said she did not have any form of transport to get to her job at Alexandra Hills. The police told her that she had ignored her advice to catch a taxi and that she had completely lied to their faces. The appellant said that she did not have a family and relied on herself and the police officer told her that she thought she knew she was unlicensed that morning and she was going to be given another notice. At 9:30am, a further notice to appear was given to the appellant and the plates were seized. She was told that if she was caught driving again her car would be impounded. The police asked her to get out of the car and to end a phone call but the appellant did not wish to stand on the street. The police officer told the appellant that she had chosen to ignore her advice and that she had to go to court and the notice to appear was explained. The plate seizure notice for 90 days was also explained.
- [10]The trial was adjourned so that both parties could provide written submissions to the court.
- [11]The prosecutor, in his written submissions, pointed out that the appellant had stated that the infringement notices were issued while she had a learner licence and she was under the belief that the demerit points were extinguished on the issue of a new licence. It was submitted that it had been proved that the licence was demerit point suspended, the obtaining of a new driver licence or renewal of a driver licence has no effect on the demerit point accumulation. Any mistake by the appellant was a mistake of law not one of fact, which provided no excuse, and in the circumstances she was guilty.
- [12]The appellant’s submission was that she was the holder of a Queensland driver licence which would be open on 7 October 2016. The offence relating to the suspension was on a learner’s licence for not driving under the direction of a person. She obtained the provisional licence on 7 October 2015. She pointed out there would be extreme hardship if she was to lose her licence. She relied on s 24 of the Criminal Code, alleging that the issue of the provisional licence, in her belief, was sufficient to allow her to drive.
- [13]The court reconvened on 31 August 2016. The appellant gave evidence. She said that on the day in question, she was on her way to drop off her sons at a vacation care program and then go to work. She had forgotten the childrens’ lunch and returned home to get the lunch and was then followed by the police and was pulled over, firstly in Wishart. She said that she told the police that she had a new licence now – a provisional licence and she was allowed to drive unaccompanied and she produced her licence. The police wrote her a ticket but she told the police that she had to get to her work, the childcare centre was only a few hundred metres away, there were a number of expensive items in the car and she did not think it was safe to leave the car on the side of the road.[7] She said that she called the courthouse and she had been advised that she could request a document to move her car to a reasonable destination.[8] She also then rang the Department of Transport.
- [14]The police just wrote her a ticket.[9] She denied that the police told her that she had to catch a cab to work and that the appellant said she could not do that.[10] She tried to ring her grandmother. She made the decision to take the car to the childcare centre and just take a backstreet, but the police were waiting around the corner.[11] She thought the situation was stressful and thought the police had taken extreme measures.[12] She agreed that she did not dispute she had been caught driving unaccompanied on the learner’s permit and had paid the fine.[13] The reason she was driving unaccompanied was that she did not have anybody with her and had booked a holiday on the Gold Coast and she went to pick her car up at Burleigh Heads and was followed by the police.[14] She said that she relied on her licence for work as she was the sole provider for her family.[15]
- [15]She agreed in cross-examination that police told her that her licence had been suspended due to the allocation of demerit points.[16] She agreed that the police told her she was not meant to be driving a motor vehicle.[17] She told the police that she believed there was a mistake and she intended to take it to court.[18] She accepted though, she had been told not to drive. She felt like the police were trying to start an argument with her.[19]
- [16]Further oral submissions were made by the prosecutor in line with the written submissions to which I have already referred. The appellant, in her submissions, said that she thought she was able to drive on a provisional licence because in effect the points applied to the L licence.[20] She thought it was up to the discretion of the court.
Magistrate’s decision
- [17]The magistrate delivered her decision on 31 August 2016. Her Honour referred to the relevant evidence. Her Honour found that at the relevant time the appellant’s licence had been suspended at the time of the police intercepts. Whilst she did obtain a provisional licence of 7 October 2015, the fact is the Department had sent to her a notice that the learner’s permit was suspended and another letter advising that her licence was cancelled.
- [18]Her Honour referred to the relevant legislative provisions and noted that the points attached to every licence. It did not matter that her licence changed from a learner’s permit to a provisional licence. Any mistake by the appellant was a mistake of law which did not provide a defence.
- [19]The appellant was therefore guilty of both charges. Convictions were entered on 16 September 2016.
Submissions
- [20]The appellant in her notice of appeal alleges that the notice of suspension was unable to be presented in court as evidence and was not issued to her. In her written outline she repeats this allegation and also alleges she believed she possessed the correct driver’s licence at the time. She also repeated these allegations in oral submissions.
- [21]The respondent submits that in the recordings the appellant admitted she was aware of the two infringement notices but conveyed a belief they related to the learner’s permit, not the provisional licence. It submits that the certificates tendered proved that the relevant notices had been sent to the appellant.
- [22]It further submits that the defence of mistake of fact is not available to the appellant and any mistake was a mistake of law only.
- [23]I offered the appellant to give oral evidence e.g. on whether or not she had received the notice of suspension but she declined that offer.
Disposition
- [24]Section 78 of the Transport Operations (Road Use Management) Act 1995 (Q) (“TORUM Act”) provides:
“78 Driving of motor vehicle without a driver licence prohibited
- (1)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.
Maximum penalty—
- (a)if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence—60 penalty units or 18 months imprisonment; or
- (b)otherwise—40 penalty units or 1 year’s imprisonment.”
- [25]The Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 (Q) (“TORUM-DL Regulation”) allows the Chief Executive the power to record demerit offences on a person’s traffic history. Section 75 provides:
“75 Allocation of demerit points
- (1)This section applies if—
- (a)a person has been convicted for a contravention of—
- (i)a demerit points offence; or
(ii) an interstate offence; or
Editor’s note—
Convicting is defined in the Act, schedule 4.
- (b)an order has been made against a person under—
- (i)the State Penalties Enforcement Act 1999, section 38 for a demerit points offence; or
- (ii)a corresponding law for an interstate offence.
- (2)The chief executive may record on the person’s traffic history—
- (a)particulars of the offence; and
- (b)the penalty imposed on the person; and
- (c)the number of demerit points allocated for the offence under this section or section 76, 77, 78 or 78A; and
- (d)the day the offence was committed.
- (3)Subject to sections 76, 77, 78 and 78A, the number of demerit points to be allocated is the number of points mentioned in schedule 3 for—
- (a)if the offence is a demerit points offence—the offence; or
- (b)if the offence is an interstate offence—the offence that corresponds to the interstate offence.
- (4)Demerit points allocated under subsection (3) are taken to be allocated on the day the offence was committed.
- (5)To remove any doubt, it is declared that the Criminal Code, section 16, applies to this part.”
- [26]
- [27]The incurring of these demerit points enlivened s 79 TORUM-DL Regulation which relevantly provides:
“79 Queensland driver licence holder—notice to choose
- (1)This section applies—
- (a)if—
- (i)4 or more demerit points are recorded on a person’s traffic history; and
- (ii)the demerit points were allocated in a continuous 1-year period while the person did not hold a driver licence; and
- (iii)the person holds a Queensland driver licence; or
- (b)if—
- (i)4 or more demerit points are recorded on a person’s traffic history; and
- (ii)the demerit points were allocated in a continuous 1-year period; and
- (iii)during any part of the period the person held a learner, P1 type, P2 type or P type licence, or a driver licence granted outside Queensland that corresponds to a learner, P1 type, P2 type or P type licence, but did not hold an O type licence; and
- (iv)the person holds a Queensland driver licence; or
- (c)if—
- (i)12 or more demerit points are recorded on a person’s traffic history; and
- (ii)the demerit points were allocated in a continuous 3-year period, and during any part of the period the person held a Queensland driver licence; and
- (iii)the person holds an open licence.
- (2)However, this section does not apply if section 79A, 80, 81, 101, 120 or 121 applies.
- (3)The chief executive must give the person a written notice (a notice to choose) requiring the person, within a stated time of at least 21 days, to choose between—
- (a)having the person’s licence suspended for the requisite suspension period; or
- (b)agreeing to be of good behaviour while driving for a year.
- (4)A person is of good behaviour while driving for a year, if no more than 1 demerit point is allocated to the person’s traffic history during the year.
- (5)If, within the stated time, the person—
- (a)notifies the chief executive that the person chooses for subsection (3)(a) to apply; or
- (b)does not notify the chief executive of the person’s choice under subsection (3)(a) or (b);
the person’s licence is suspended for the requisite suspension period starting on the sanction day.
Note—
See section 127(4) of the Act for the effect of a suspension of licence.
- (6)If—
- (a)within the stated time, the person notifies the chief executive that the person chooses for subsection (3)(b) to apply; and
- (b)2 or more demerit points are allocated to the person’s traffic history during the year starting on the sanction day;
the chief executive must give the person a written notice stating that the person’s licence is suspended for double the requisite suspension period starting on the day after the day stated in the notice.
- (7)The day stated must be at least 21 days after the day of the notice.
- (8)If the licence is an open or provisional licence, the notice must also inform the person that the person may be eligible to apply for a special hardship order under part 14 in relation to the suspension.
Note—
Section 108 provides for the stay of the suspension of a person’s open or provisional licence if the person makes an application for a special hardship order.
- (9)The person’s licence is suspended for double the requisite suspension period starting on—
- (a)the day after the day stated in the notice; or
- (b)if the person notifies the chief executive that the person wants the suspension to start earlier than the day stated in the notice—the day, not before the day on which the person gives the notice to the chief executive, chosen by the person.
Note—
Section 113 provides for the ending of the suspension of a person’s open or provisional licence under subsection (9) if a court makes a special hardship order in relation to the person.”
- [28]The consequence which flowed from the appellant accumulating 6 demerit points when she held a learner licence was a suspension of her driver licence.
- [29]Section 127(4) and (5) of the TORUM Act provide:
“(4) Suspension under this Act of any licence—
- (a)shall, whilst such licence is so suspended, have the same effect as the cancellation of the licence; and
- (b)shall, whilst such licence is so suspended, disqualify the person who held that licence from holding or obtaining a licence of the same kind, class, or description; and
- (c)(if the period of such suspension is less than the period during which that licence ordinarily would have remained in force) shall not, upon the termination of that suspension, extend the period during which that licence thereafter remains in force beyond the period during which that licence would have remained in force if it had not been so suspended.
- (5)Any cancellation or suspension of a Queensland driver licence shall apply and extend to such licence and to every other Queensland driver licence authorising the person in question to drive any vehicle.”
- [30]The fact is, a demerit point suspension relates to a person’s traffic history and not a specific driver licence.
- [31]In construing the legislation I have had regard to s 14A of the Acts Interpretation Act 1954 (Q) which provides:
“14A Interpretation best achieving Act's purpose
- (1)In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.”
- [32]I have also had regard to the principle that in construing an act one should have regard to the principle that the meaning of the text may require consideration of the context which includes the general purpose and policy of the provision in particular the mischief it is seeking to remedy.[23] In this case it may be thought the object of the act is to deter people from breaching the traffic laws and further to punish people for breaching them.
- [33]In my view it would be an absurd result if a person could accumulate points on one licence such as to lead to a suspension and then to avoid that by obtaining another licence.
- [34]In my view the effect of s 127(5) of the TORUM Act was to cancel all Queensland Driver licences held by the appellant. The obtaining of a new driver licence or renewal of a driver licence had no effect on the demerit points accumulated on her traffic history.
- [35]In Cook v Commissioner of Police,[24] the appellant made a similar error as the appellant made in the present case. Holmes JA (as her Honour then was) said at [17] that the notion that the renewal of a licence meant the removal of accrued demerit points was on any view a mistake of law. It was held by the court that a demerit point suspension was an automatic operation of law and not a discretionary matter (see [18]). Where a suspension of licence was an automatic consequence as opposed to a discretionary suspension, any mistake as to the subsequent suspension would be a mistake of law. A mistake of fact can only be relied on where a mistake relates to the underlying events which led to the merit point suspension. The appellant, in this case, was not mistaken as to the events which led to the suspension, rather it was a mistake as to the legal status of her licence.
- [36]In this case, the appellant – at best for her – was mistaken as to the law.
- [37]Section 22 of the Criminal Code 1899 (Q) made her criminally responsible. Section 22 provides:
“22 Ignorance of the law—bona fide claim of right
- (1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.
- (2)But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud.
- (3)A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it.
- (4)In this section—
publish—
- (a)in relation to a statutory instrument that is subordinate legislation—means notify in accordance with section 47 (Notification) of the Statutory Instruments Act 1992; and
- (b)in relation to a statutory instrument that is not subordinate legislation—means publish in the gazette.”
- [38]It must also be borne in mind as regards Charge 2 that the appellant had already been told she was suspended but despite that, continued to drive. It is hard to see mistake of any kind being available for charge 2.
- [39]In those circumstances the magistrate was right to reject the defence of mistake of fact.
- [40]The remaining question is whether service of the notices was sufficiently proved. Of course s 79 of the TORUM-DL regulation requires that a notice be sent.
- [41]In Carolan v Cohen,[25] Robertson DCJ held that a certificate tendered under s 95 of the Evidence Act 1977 (Q) was sufficient proof that the relevant notice issued by the Department of Transport had been sent to the appellant.
- [42]In this case the certificate (Exhibit 2) clearly proved the relevant notices had been sent to the appellant’s address. Section 39 and 39A of the Acts Interpretation Act 1954 (Q) provide that posting a notice to a person’s last known address is effective service.
- [43]In the circumstances the appeal must be dismissed and the orders made below confirmed:
- The Appeal is dismissed.
- The orders made in the Magistrates Court in this matter are confirmed.
- [44]The respondent does not seek costs. I make no order as to costs.
Footnotes
[1] See Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir JA.
[2] Parsons v Raby [2007] QCA 98 at [23].
[3] This averment was conclusive evidence of such matter without evidence lead in rebuttal- see section 124(1)(r) of the Transport Operations (Road Use Management) Act 1995 (Q).
[4] Transcript 24 June 2016 p 2.
[5] Transcript 24 June 2016 p 10.
[6] The recording is Exhibit 3.
[7] Transcript 31 August 2016 p 5.35.
[8] Transcript 31 August 2016 p 5.45.
[9] Transcript 31 August 2016 p 7.10.
[10] Transcript 31 August 2016 p 7.17.
[11] Transcript 31 August 2016 p 8.6.
[12] Transcript 31 August 2016 p 8.25.
[13] Transcript 31 August 2016 p 10.20.
[14] Transcript 31 August 2016 p 10.30.
[15] Transcript 31 August 2016 p 11.12.
[16] Transcript 31 August 2016 p 13.11.
[17] Transcript 31 August 2016 p 13.17.
[18] Transcript 31 August 2016 p 13.22.
[19] Transcript 31 August 2016 p 17.15.
[20] Transcript 31 August 2016 p 20.
[21] Traffic History - 21 September 2015 – result date 7 October 2015 – 4 points.
[22] Traffic History - Offence date 21 September 2015 – 2 points; see Schedule 3B – Transport Operations (Road Use Management – Driver Licencing) Regulation 2010 (Q).
[23] Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (NT) (2009) 239 CLR 27 at [47].
[24] (2012) 220 A Crim R 444; 60 MVR 436; [2012] QCA 118.
[25] [2011] QDC 103 at [14], [16] and [17].