Taylor v Commissioner of Police
[2017] QDC 23
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- Unreported Judgment
- Taylor v Commissioner of Police[2017] QDC 23
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Taylor v Commissioner of Police[2017] QDC 23
Taylor v Commissioner of Police[2017] QDC 23
DISTRICT COURT OF QUEENSLAND
CITATION: | Taylor v Commissioner of Police [2017] QDC 23 |
PARTIES: | GRAHAM HERBERT TAYLOR v COMMISSIONER OF POLICE |
FILE NO/S: | D08/2015 |
DIVISION: | Appellate |
PROCEEDING: | s 222 Appeal |
ORIGINATING COURT: | Magistrates Court at Hervey Bay |
DELIVERED ON: | 15 February 2017 |
DELIVERED AT: | District Court at Hervey Bay |
HEARING DATE: | 10 February 2016 |
JUDGE: | Long SC DCJ |
ORDER: | That the orders made in relation to the conviction of the appellant in the Magistrates Court at Hervey Bay on 14 April 2015, and:
|
CATCHWORDS: | APPEAL AND NEW TRIAL – s 222 of the Justices Act 1886 – Where the appellant was convicted of an offence pursuant to s 48(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 – Where the appellant was convicted and fined $200 and ordered to pay $86.80 costs - Whether there has been any legal or factual error made – Where the appellant was convicted of an offence pursuant to s 133(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010 - Where the appellant was convicted and fined $150 and ordered to pay $86.80 costs – Whether there has been any legal or factual error made – requirements in proof of “change of address” – whether there should be an order for retrial pursuant to s 225(2) of the Justices Act 1886 |
LEGISLATION: | Justices Act 1886, ss 222, 223(2), 225(1), 225(2) Statutory Instruments Act 1992, s 37 Transport Operations Road Use Management Act 1995, ss 3, 60(2)(d)(i), 60(2)(e), 60(2)(g), 60(2)(t)(i), 78, 81(3)(c), 114(3)(b)(i), 114(3)(A), 124(n), 133(1)(e), 133(7), 150 Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010, ss 19(1)(b), 19(1)(c), 48(1), 124(g), 128(1), 133(1) |
CASES: | Bropho v Western Australia (1990) 171 CLR 1 R v Chong [2012] QCA 265 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 R v Jackson [2005] SASC 472 King v R (1986) 161 CLR 423 Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 Stoke-On-Trent, Borough Council v Cheshire County Council [1915] 3 KB 699 |
COUNSEL: | The applicant appeared on his own behalf D Kovac for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Commissioner of Queensland Police for the respondent |
Introduction
- [1]By notice of appeal filed on 29 April 2015, the appellant appeals against his conviction (and the consequently imposed fines and orders as to costs) on 14 April 2015, after trial in the Magistrates Court at Hervey Bay, of the following offences:[1]
- That on the 20th day of December 2013 at Burrum Heads in the Magistrates Courts district of Hervey Bay in the state of Queensland, one Graham Herbert Taylor, being a person who bought a registered vehicle, failed to apply to the Chief Executive for transfer of the vehicle’s registration within 14 days after acquiring it (contrary to s 48(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010); and
- That on the 20th day of December 2013 at Burrum Heads in the Magistrates Courts district of Hervey Bay in the state of Queensland, one Graham Herbert Taylor, being the holder of a Queensland driver’s licence, namely an Open Class driver licence, did fail within 14 days after change of his address to notify the Chief Executive of the said change (contrary to s 133(1) of the Transport Operations (Road Use Management – Driver’s Licensing) Regulation 2010).
- [2]In respect of the offence under s 48(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010, the appellant was fined $200 and ordered to pay $86.80 costs. In respect of the offence under s 133(1) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010, the appellant was fined $150 and ordered to pay $86.80 costs. Convictions were recorded and the recovery of those sums was referred to SPER.
- [3]The grounds of appeal are stated in the notice of appeal, as follows:
“I have a proven disability MOD severe brain damage which effects process of increasing amounts of information. The effects of Howard Police have little to do with law and order but a lot more to do with malice and clear intent to harm me and my mum. We have shifted home several times in several months and we note Magistrate Court hearing did not consider or look at reports by doctors re disability which explained Mr Taylor’s reasoning in full in giving answer as tape used as evidence against him.”
- [4]This perhaps gives some inkling as to the procedural difficulties that were subsequently encountered in attempting to have the appellant comply with the normal expectation that he produce a succinct and coherent outline of argument in support of his appeal, particularly noting the many documents that were submitted by the appellant, and which contained generally disorganised and rambling observations and were often included as handwritten notation on scraps of paper such as correspondence directed to the appellant.
- [5]In the end, the matter proceeded upon the basis that a bundle of documents (also mainly in the nature of handwritten notations on copies of correspondence to the appellant and other scraps of paper) and received in the Registry at Hervey Bay on 30 June 2015, constituted the appellant’s written outline of argument.[2] And it can be noted that consistently with the ground of appeal extracted above, there was nothing specifically put forward as challenging his conviction of the offence in respect of failure to transfer the registration of a motor vehicle, apart from generalised allegations of harassment.
- [6]However, and in respect of the offence relating to failure to notify a change of address in relation to his driver’s licence and consistently with the issue adverted to in the stated grounds of appeal, the appellant wrote:
“Over past 30 months we have shifted many times 4 holiday rentals Then building new home for mum on 1 title/subdividing it into two Council gave us choice of several address being a corner and my home as temp residence. Burrum Heads does not have mail boxes, majority are known by face and collect mail at general store many here are away 3-8 months plus per year at many camp sites in Australia.”
And subsequently, he asserted that the regulation was problematic, as being involved in relation to “every grey nomad… of no fixed abode”.
The appeal
- [7]This appeal is brought pursuant to s 222 of the Justices Act 1886 and particularly, in the absence of leave to adduce any new evidence pursuant to s 223(2), this Court is required to conduct a review of the hearing below and ultimately, correct any error of the sentencing magistrate, determined on the basis of that review and this Court’s own conclusions, having due regard to the decision which is the subject of the appeal.[3]
- [8]Accordingly, it is necessary here to review the record of the proceedings below and the decision of the presiding magistrate, for any indication of legal or factual error, in relation to the orders that have been made against the appellant. There has been no leave granted for the introduction of new evidence and therefore and to the extent that new or additional facts may be asserted in the appellant’s written or oral submissions, they will not be taken into account, except to any necessary extent, as context to any pertinent submissions that are made.
The Magistrate’s decision
- [9]It is convenient to first note some critical aspects of the evidence upon which the magistrate’s decision was based. And in doing so, it can be noted that these charges were conveniently and without objection, heard conjointly, as they largely arose out of common evidence, particularly in respect of the interception of the appellant, by police and for a random breath test, on 20 December 2013 and when he was driving a green Ford motor vehicle, registration number 044-LME, on Sunrise Crescent at Burrum Heads. And at which time he was requested to produce his driver’s licence. The conversation in respect of these matters was recorded and the prosecution case was particularly reliant upon the admissions of the appellant that are found in the following passages:
- (a)
“SCON HENDREN: Is, is the vehicle registered to you?
TAYLOR: Y-, um I just got, got it. And I'm just going to do another roadworthy on it. No, it belongs to ah, ah dutchie guy I just bought the thing off.
SCON HENDREN: So how long have you owned the car?
TAYLOR: Oh shit, ah several ah months now. So I've got to um, ah cha-, change it over shor-, shortly 'cause it’s been their Pizza Hut car.
SCON HENDREN: Yeah. Is there any reason why you haven't um registered it in your name, or transferred it -[INDISTINCT]- transfer the?
TAYLOR: I’ve got the papers here.
SCON HENDREN: Yeah.
TAYLOR: I get stumbled on paperwork. I've got a disability as far as, I'm, I was born in nineteen fif-, fifty-four, I'm as thick as Forrest Gump, and I'm just been down there now to get some paperwork and get this done, so.
SCON HENDREN: Okay. But the vehicle, you, you paid for this vehicle--
TAYLOR: Yes I have yes.
SCON HENDREN: Et cetera that you’ve --
TAYLOR: Yes, yeah.
SCON HENDREN: So how come you guys didn't do all that at the time?
TAYLOR: [INDISTINCT] Kiwi land where we don't sorta go through so much paperwork. And I get bamboozled on it, Jason.
SCON HENDREN: Yeah.
TAYLOR: And so.
SCON HENDREN: Well mate, both parties really need to. If it's still--
TAYLOR: Yeah.
SCON HENDREN: If you have an accident or it gets--
TAYLOR: Yeah.
SCON HENDREN: Picked up on a speed camera it goes ah to him, the paperwork. So obviously that's why we do it here.
TAYLOR: Yeah.
SCON HENDREN: So is there any reason why that hasn't happened?
TAYLOR: No. It's just that I have trouble. I've got a, ah I've got carer's support, Queensland carer's support--
SCON HENDREN: Yeah.
TAYLOR: Who are givin' me a hand with this paperwork.
SCON HENDREN: So the vehicle's not registered to your address at Bulleen Way at all, is it?
TAYLOR: It should be.
SCON HENDREN: Yeah. No, well it's not. It's registered in someone--
TAYLOR: Okay.
SCON HENDREN: Else's name.
TAYLOR: I've, I've only got a couple of weeks and I've got to just do it. So um it’s going be registered for 8 Bulleen Way shortly.”; and
- (b)
“SCON HENDREN: That's alright. Graham Herbert Taylor?
TAYLOR: That’s me, Graham Herbert Taylor, Jason.
SCON HENDREN: nice Mr Taylor. What's your, what's your current address? Still at Sunrise Crescent, is it--
TAYLOR: Yeah ah--
SCON HENDREN: 44?
TAYLOR: Just down the end, ah number 8 ah Bullen Way. I'm just ah taking care of Mum down there.
SCON HENDREN: Okay. How long you been livin' at that address?
TAYLOR: Um only a short time there, Jason.
SCON HENDREN: How long's a short time?
TAYLOR: Oh maybe um, oh god. I built the home down here at number 44 and I built number 6 and number 8.
SCON HENDREN: Yeah. So well where do you currently live, at S-, --
TAYLOR: Um.
SCON HENDREN: At Sunrise or at Bulleen?
TAYLOR: Ah no-, Bullen Way , down at number six.
SCON HENDREN: Yeah. So how long have you lived at Bulleen?
TAYLOR: Oh only a short time, matter of w-, weeks up there.
SCON HENDREN: A matter of weeks?
TAYLOR: A matter of 8 Bullen Way.
SCON HENDREN: Yeah.
TAYLOR: we just sh- shifted there.
SCON HENDREN: So how many weeks have you lived there?
TAYLOR: Oh several weeks, about seven or eight weeks I think.
SCON HENDREN: Yeah. So is there any reason why you haven't changed your ah address over on your licence at all?
TAYLOR: Oh shit. I didn't know you had to do that.
SCON HENDREN: Yeah, mate. Go to do it within fourteen days--
TAYLOR: Fourteen days
SCON HENDREN: Of changin'.
TAYLOR: Oh shit mate
SCON HENDREN: That, that's why, if you get a ticket or somethin, they need to send you--
TAYLOR: Oh.
SCON HENDREN: Mail, they can send it out to ya.
TAYLOR: Mate.”
- [10]In addition, the prosecution relied upon certificates produced pursuant to:
- (a)s 60(2)(g) and (t)(i) of the Transport Operations Road Use Management Act 1995 (“TORUM”) and as to the recorded particulars for the appellant’s driver’s licence, as at 20 December 2013, and including his address as “44 Sunshine Crescent Burrum Heads QLD 4659”; and
- (b)s 60(2)(d)(i) and (e) and s 124(n) of TORUM and as to the registration as at 20 December 2013 of a “Ford KA Hatchback, engine number XJ59439, registration number 044-LNE” in a name other than that of the appellant.
- [11]At the trial, the appellant gave evidence and the magistrate recorded a generalised finding that:
“Where the prosecution differ to the evidence given by the defendant, I accept the version of the prosecution witness and reject the evidence of Mr Taylor”.[6]
However, this finding only appears to have particular relevance to what may have been perceived as attempts by the appellant, in his evidence, to qualify or depart from any admissions that were recorded on 20 December 2013. It will be necessary to return to this issue later.
- [12]There were only two witnesses at the trial. As to the prosecution witness, His Honour found:
“I considered the evidence from Senior Constable Hendren. His evidence is supported by the tape of the conversations that took place at the roadside. I have is no reason to believe that he wasn't an honest and truthful witness while he gave his evidence, and, of course, the tape supports the whole of his version of events.”[7]
And generally, in respect of issues of credibility and the appellant’s evidence, it was observed:
“In relation to the issue of credibility, it's necessary for me to make some comments in relation to credibility before I decide the issues; and I should say, firstly, in relation to both offences the essential elements in relation to the first offence, time, date and place, is not disputed; that the motor vehicle was a motor vehicle as defined in the TORUM Act. It's not disputed that Sunshine Crescent, Burrum Heads is not disputed by the defendant and further what is disputed by Mr Taylor is that it wasn't necessary to transfer the vehicle because of the fact he hadn't completely paid for the vehicle, so that brings that element of the offence in to play and also the [indistinct] of whether he was the owner of the motor vehicle.
In relation to fail to notify change of name or address, once, again, the essential elements of time, date and place has not been disputed by him, the fact that he is a holder of a Queensland driver's licence open class C has not been disputed, and from his evidence it's hard to work out the - from his evidence as to whether he agrees or disagrees that he hadn't made the change within 14 days after notifying his address because of the fact that he says that he was between 44 Sunrise Street and 8 Bulleen Way…
In relation to the defendant, I accept fully that Mr Taylor's ‑ I wouldn't like to call him Forrest Gump like he does himself ‑ but I accept fully that he has major problems in relation to memory and times of event, but, once, again, in this hearing, it appears that he was more interested ‑ bringing up all the matters that occurred before and the treatment he's received by the police in the past and the fact that was there ‑ any discretion in policing, so I accept from that almost that he admits to the offence, but is wondering why the police would pursue such trivial offences.”[8]
Transfer of Registration
- [13]Turning more specifically to the allegation as to failure to transfer the registration of the motor vehicle, the essential findings of the magistrate were:
“And I say from the evidence I am prepared to accept that in relation to count 1 that the defendant had purchased that vehicle; that from the date of purchase he had 14 days to transfer that matter. I accept his conversation in the tape; that he had had the vehicle for a period of some months, and I will accept the fact that the vehicle was sold, perhaps without a roadworthy certificate, and that it was necessary for him to go through that process, and it's a process of getting that certificate and completing the transfer papers were probably too tough for him.”[9]
- [14]It is unclear as to the basis upon which the Magistrate drew all of the inferences as to the complications in obtaining a “roadworthy” or safety certificate. Although and in the conversation recorded on 20 December 2013, the appellant did say that he was “going to do another roadworthy on it”, he also said “I’ve got all of the papers here”, before saying, that he gets “stumbled on paperwork”. Otherwise he proffered no other reason for not having transferred the registration of the car that he was then driving, as a registered vehicle. And when asked whether he had paid for the vehicle, he said: “Yes I have yes”. However and in his evidence at trial, the appellant asserted that:
I, Mr Graham Herbert Taylor, in reflection, understand that the transfer of the Ford KA ownership was not completed because of full purchase price or full agreement not completed and waiting for confirmation.[10]
But and as is apparent from the following passage, he was not able to provide any cogent explanation as to what had occurred:
“Go back to this other matter first. You’ve got – I’m not going to lead you through your evidence ‑ ‑ ‑?‑‑‑Yeah.
‑ ‑ ‑ but you need to give evidence of when you bought the vehicle, how much you paid for it, when payments were made?‑‑‑It’s quite some time ago. I can’t remember. I do a lot of dealings, your Honour. Some things seem like yesterday and some things can be two or three years ago and – and be actually closer to what I think now. I paid him some cash. It was different to the asking price and we agreed on a meter ‑ ‑ ‑
You agreed on what?‑‑‑A compromise at a later date.
Paid some cash. Different to purchase price?‑‑‑Yeah.
Yes?‑‑‑The guy who I – the person who I was dealing with was of South African descent and not the woman which Constable Hendren has stated in the – in the statement which he’s made. I’ve never met any woman regarding this car. So I was acting with an agent – perhaps an agent for this person who was selling the car. I regarded it as such a minor matter that I could focus on major things, as I hoped our police would.
Well, you must recall the 20th of December. What was paid before then and if there was anything outstanding?‑‑‑I would say it was a couple of cartons of beer. From a person who doesn’t drink and doesn’t hold beer on stock up till now ‑ ‑ ‑
So when did the pay the cash for the car?‑‑‑I can’t recall, but it must have been some – yeah, some time ago.
Some time prior to the 20th?‑‑‑I don’t have a computer and I have – I don’t have a filing clerk, but I have a problem ‑ ‑ ‑
Have you got any records that would indicate when it was?‑‑‑It was such a small amount of money, your Honour, 4 or 500 bucks, something you have in your pocket. You’d pay for a car. It’s like buying a horse in the Wild West, you just ride it and use it.
Okay. Anything else you want to say about that?‑‑‑Yes, your Honour, but I’m just trying to think. I’ve come in here and I – it takes me a few minutes to think. I’m trying to recall what had happened. I know it was a very hectic time, building the homes, taking care of Marj and doing a lot of the physical work on the homes meself and subcontracting the plumbing out, of course, and the – but being involved in Drainland, etcetera, as a drain layer’s labourer, I know that often when you work extremely hard physically, one side punishes the other and it’s very hard to think even more when you’re working till you – till you drop.”[11]
- [15]The offence is proscribed by s 48(1) of the Transport Operations (Road Use Management-Vehicle Registration) Regulation 2010, as follows:
“48 Transfer of registration
- (1)A person who buys or otherwise acquires a registered vehicle must apply to the chief executive for transfer of the vehicle’s registration within 14 days after acquiring it, unless the person has a reasonable excuse.
Maximum penalty—16 penalty units.”
- [16]As has been noted and as he was entitled to do, the Magistrate, who enjoyed the benefit of seeing and hearing the defendant give evidence, found that he was not prepared to act on his evidence but rather found that some significant facts had been admitted by the appellant on 20 December 2013. Clearly the Magistrate appreciated the need to identify truthful statements before acting upon them, as such. However, it can also be observed that an agreement to defer or postpone payment of all or any part of the purchase price of a vehicle, does not necessarily lead to any conclusion that the vehicle has not been bought, within the meaning of s 48(1), particularly in the context of the emphasis on “acquiring it”, in triggering the 14 day time period for doing so. In any event and if there was doubt, the situation may be amenable to amendment pursuant to s 48 of the Justices Act 1886, to an allegation of otherwise acquiring it. Here, there was nothing detracting from the allegation that the appellant had bought and acquired the vehicle and had not applied for the transfer of registration “within 14 days after acquiring it”.
Accordingly, there is no demonstrated error in the conviction of the appellant of the offence pursuant to s 48(1) of the Transport Operations (Road Use Management-Vehicle Registration) Regulation 2010. And there is no apparent reason for any interference with the orders made in consequence of that conviction.
Change of address
- [17]However, the position in respect of the offence pursuant to s 133 (1) of the Transport Operations (Road Use Management-Driver Licensing) Regulation 2010, is more problematic. As at 20 December 2013, that offence was proscribed as follows:
“133 Change of name or address
- (1)If the holder of a Queensland driver licence changes the holder’s name or address, the holder must notify the chief executive of the change within 14 days of the change.
Maximum penalty—20 penalty units.”[12]
- [18]In respect of that offence, the essential findings of the magistrate were:
“In relation to the fail to notify the change of name and address to transport, I am satisfied beyond a reasonable doubt, and from the evidence of the tape recording, that the defendant has been before had been living at that address for some weeks a short period of time he said and then several weeks and then seven to eight weeks so I am prepared to accept it was longer than the Act requires. He continually indicated about being under pressure when questioned by a police officer. I think the tape indicates clearly that there was no pressure put upon him. In a matter of fact, he was quite candid during that interview, particularly when he says that he'd lived for a short period and then said several weeks, seven to eight weeks and when Senior Constable Hendren said he had to transfer it he said, "Shit. I did not know you had to do that." I think that sums up his evidence in a nutshell.”[13]
- [19]However, those conclusions are only responsive to the approach taken from the outset of this prosecution on 20 December 2013 and appear to be premised upon the bases of the appellant’s admission that he was then and had been for a period exceeding 14 days prior to that date, living at a different address to that recorded on his licence and that this conclusion decided the matter.
- [20]As the appellant seeks to contend, there may be a question as to what is meant by “address” in s 133(1) and more particularly as to when there is a “change” in such address and hence the requirement for notification. And therefore, as to the requirements for establishing an offence under that regulation. In this regard, it may be noted to not necessarily be uncommon for a person to have more than one place of residence, notwithstanding that at any given point in time, he or she may only properly describe himself or herself, or be described, as living at one such residence. Any number of examples may be considered, such as in respect of persons who live and reside at one place for periods, for employment purposes, but otherwise maintain a place of residence elsewhere, whether or not others (family members or associates), remain domiciled there. And there is also the appellant’s reference to the “grey nomads”, which may be taken to be a reference to persons who are primarily concerned with travelling from place to place within Australia and usually by motor vehicle (and therefore utilising a driver’s licence), notwithstanding that such persons may or may not retain a home in Queensland.
- [21]In the first instance, there is the legislative use of the word “address”, which as indicated by the Macquarie dictionary, 5th Edition, may broadly convey an alternative meaning:
“A place where a person lives or may be contacted.”
Although the term is not expressly defined in the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (“the Driver Licensing Regulation”),[14]as was pointed out for the respondent,[15]the term is defined in Schedule 4 of TORUM as follows:
“address means place of residence or, in the case of the owner of a vehicle in respect of which a licence has issued under this Act, the owner’s place of residence or the place at which the owner carries on business or, in the case of a corporation, its registered office or, if the registered office is not in Queensland, the principal place where it carries on business in Queensland, and includes all such information and particulars as will enable such place of residence or of business to be readily and exactly located.”[16]
- [22]As is implicit in the submissions that then follow and with apparent cognisance of the difficulties that might ensue from the simplicity of an interpretation of “place of residence” as “the place where [a person] eats, drinks and sleeps”,[17]it was recognised that as the examples already noted exemplify, commonly encountered circumstances may introduce a level of fluidity which could not be expected to be reflective of the requirement for notification of change, particularly where there is sanction by way of provision of a criminal offence for failure to do so, within such a short time period. Another simple example may be of a person who goes to live at another location for the purposes of vacation and for a period in excess of 14 days.
- [23]Although expressed in relation to an issue arising in a different statutory context, the following observations by Debelle J, in R v Jackson,[18]also exemplify the problematic nature of a similarly terse reference to the term “place of residence”:
“16 Although the definition of "place of residence" in s 170(3) includes a wide variety of premises, the section says nothing as to the question whether the premises must be occupied at the time. Nor does it address the question of how long a person must live in a particular place in order for it to constitute a place of residence.
17 There will be instances where the statutory context requires a degree of permanence: see, for example, Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482 per Barwick CJ at 487 and per Gibbs J at 496 – 497; Re Adoption Application [1951] 2 All ER 931. In other statutory contexts, however, a degree of permanence may not be required. The law recognises, for example, that a person may have more than one residence: Attorney-General v Coote (1817) 4 Price 183 at 188, 146 ER 433 at 435; Robertson v Federal Commissioner of Taxation [1937] HCA 32; (1937) 57 CLR 147; Gregory v Deputy Federal Commissioner of Taxation (WA) (supra) where the taxpayer was held to reside at both Broome and Darwin; and Fox v Stirk & Bristol Electoral Registration Officer [1970] 3 All ER 7 where it was held that, during term, a university student might have a place of residence at a university college or other accommodation in a university town and also have a residence at his parental home: see also R v Lomas [1998] EWCA Crim 2841. It is not unusual for a person to have a town house and a holiday house elsewhere and both will be a place of residence.
18 A corollary of the fact that a person may have more than one place of residence is that a person’s place of residence will continue to be a place of residence notwithstanding long periods of absence: Egmont National Park Board v Blake [1949] NZLR 177 at 181; Fox v Stirk (supra).”
- [24]Further and more generally, His Honour also observed:[19]
“12 The expression ‘place of residence’ is not a legal or technical term but is to be given its meaning in ordinary usage: Gregory v Deputy Federal Commissioner of Taxation (WA) [1937] HCA 57; (1937) 57 CLR 774 per Dixon J at 777. In addition, its meaning must be understood in every case in accordance with the object and intent of the Act in which the expression occurs: cf Ex parte Breull; re Bowie (1880) 16 Ch D 484 at 486. What constitutes a place of residence is a question of fact; it is not a question of law: Australasian Temperance & General Mutual Life Assurance Society Co v Howe [1922] HCA 50; (1922) 31 CLR 290 per Higgins J at 329; Gregory v Deputy Federal Commissioner of Taxation (WA) (supra). It is a question of fact and degree: Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93 at 97, 101, 103; cf R v King (1978) 19 SASR 118 at 119 – 120, 123. Although it is a question of fact, reference to authority provides assistance for determining what kind of premises are comprehended by the expression a ‘place of residence’.
13 The expression ‘place of residence’ is a familiar one. It indicates the place where a person usually resides. In ordinary usage, a residence is one’s usual dwelling place or abode: Oxford English Dictionary and Macquarie Dictionary. The expressions ‘place of abode’ and ‘place of residence’ may in certain contexts be almost interchangeable: Vickers v Jarrett Industries Pty Ltd (1977) 15 SASR 525 at 531. A residence may denote a degree of permanence. Similarly, the verb ‘reside’ may mean to dwell permanently or for a considerable time: Oxford English Dictionary and Macquarie Dictionary.
14 However, it would be wrong to conclude that there is a settled meaning for the expression ‘a place of residence’ or that the expression ‘a place of residence’ applies only to a permanent place of residence. The expression is capable of various shades of meaning. The words ‘reside’, ‘resident’ and ‘residence’ have been used in a variety of statutory contexts. They include revenue laws, laws relating to voting entitlements, planning laws, housing laws, social security laws, workers’ compensation legislation, and even copyright legislation. An examination of those decisions discloses that there is no fixed meaning for either the word "residence" or the expression a ‘place of residence’.
15 The place of residence of a person is the place where he eats, drinks and sleeps: Stoke-on-Trent Borough Council v Cheshire County Council [1915] 3 KB 699 at 706 per Ridley J; see also R v Hammond [1852] Eng R 108; (1852) 17 QB 772, (1852) 117 ER 1477. That is a convenient starting point. However, a person might eat, sleep and drink in a variety of habitats….”
- [25]Accordingly, it may be noted that the problem is not necessarily addressed by looking for continuity of residence, so as to exclude residence of a temporary nature.[20]However and as is correctly recognised in the further submissions for the respondent, it is necessary to look for a construction “which will promote the purpose or objects of the Act”[21]and where appropriate, to have regard to the purpose of the provisions, particularly in requiring the nomination of an address and the obligation for notification of a change of address, in the context of the legislative framework in which those provisions appear.[22]
- [26]Given that the Driver Licensing Regulation is permitted and made pursuant to s 150 of TORUM, it is necessary to have regard to the definition of “address” in that Act.[23] But and as can be noted, whilst that definition first refers to “place of residence”, the extension of meaning in the case of “the owner of a vehicle in respect of which a licence has issued under this Act”, tends to indicate a requirement more in the nature of a place where the particular person can be located or contacted.
- [27]Otherwise, it may be noted that the offence of unlicensed driving of a motor vehicle,[24]depends upon a person not relevantly holding a “driver licence”, which is further defined in Schedule 4 of TORUM as:
“driver licence means—
- (a)an Australian driver licence; or
- (b)a foreign driver licence.”
“Australian driver licence” is also defined as follows:
“Australian driver licence 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.”[25]
And there also a definition of “non-Queensland driver licence”, as follows:
non-Queensland driver licence means—
- (a)an interstate licence; or
- (b)a foreign driver licence.”
Further, s 128(1) of the Driver Licensing Regulation provides:
- “(1)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.”[26]
- [28]Pursuant to s 19(1)(b) of the Driver Licensing Regulation, a person who does not reside in Queensland is not eligible for the grant or renewal of a Queensland driver’s licence and s 124(g) also indicates an ongoing requirement as to residence in Queensland. Accordingly, the requirement in respect of nomination of an address and notification of any change of that address, may be seen as supportive of that particular eligibility criterion. But there is no express requirement that this be as to a sole or even primary place of residence and it does not follow that a person with more than one place of residence in Queensland, or an alternative place of residence outside of Queensland, would be ineligible for a Queensland driver licence. However, s 19(1)(c) of the Driver Licensing Regulation indicates that it is not permissible to have a Queensland driver licence, whilst being the holder of any other driver licence that would allow driving in Queensland.
- [29]It may be therefore concluded that in order to be a “place of residence”, as contemplated in the definition of address in Schedule 4 of TORUM and within the meaning of s 133(1) of the Driver Licensing Regulation, it is not necessary that there be any sense of singularity or permanency of occupation, particularly in the sense that any periodic residence elsewhere, will not necessarily deny that characterisation. Moreover, the most critical concept under s 133(1) is that having regard to the currently nominated place, there has been a change in circumstances, such as to require notification within 14 days of the change happening. It must be concluded that to be workable, this does connote a sense of permanency of altered circumstances and such as to include severance of association with the nominated place, so that it may no longer be regarded as a place at which that person resides and may be located or contacted.
- [30]The fact of severance of association, so that the address recorded in respect of the appellant’s licence was no longer to be regarded as a place of residence at which he might be located or contacted and that such change had occurred more than 14 days prior to 20 December 2013, were facts to be proven, beyond reasonable doubt, by the prosecution. However and as has been noted, the fundamental problem is that the prosecution case was neither presented nor decided on that basis.
- [31]The remaining issue in rehearing this matter on this appeal, is to consider whether in the light of the determined interpretation of what was required to be proved pursuant to s 133(1) of the Driver Licensing Regulation, the evidence was capable of and did provide for the necessary conclusion.
- [32]As has been noted above, the magistrate accepted and acted upon the prosecution reliance upon the appellant’s statement to Constable Hendren on 20 December 2013, to the effect that his current address was at 8 Bulleen Way and that he had lived at that address for “several weeks, about seven or eight weeks, I think”. Whilst it may be noted that when further asked where he “currently” lived and whether it was “at Sunrise or at Bulleen”, the appellant did indicate: “Bulleen Way, down at number 6”, those concessions of the appellant do not necessarily admit the necessary severance of association with 44 Sunrise Drive, as an address within the meaning of s 133(1). Neither does the reference to the appellant’s assertion that he did not know that he had to transfer the address.
- [33]Moreover, it is apparent that the magistrate’s decision was based entirely upon acceptance, as the magistrate was once again entitled to conclude, of the truthfulness of the admission of the appellant, on 20 December 2013, that he had then lived at a different place for a period exceeding 14 days. However, this was notwithstanding that, earlier in his reasons, the magistrate had noted:
“In relation to fail to notify change of name or address, once, again, the essential elements of time, date and place has not been disputed by him, the fact that he is a holder of a Queensland driver's licence open class C has not been disputed, and from his evidence it's hard to work out the from his evidence as to whether he agrees or disagrees that he hadn't made the change within 14 days after notifying his address because of the fact that he says that he was between 44 Sunrise Street and 8 Bulleen Way.”[27]
- [34]This is in obvious reference to the evidence of the appellant. And it is not clear from this or the later, more general finding, that:
“…where the evidence from the prosecution differ to the evidence given by the defendant, I accept the version of the prosecution witness and reject the evidence of Mr Taylor”;
that the magistrate rejected the entirety of the appellant’s evidence. This is particularly because the corollary of that more general finding is that to the extent that it did not “differ” from that of the prosecution witness, the evidence of the defendant was not expressly rejected on credibility grounds.
- [35]Relevantly to this issue it may be noted that in his evidence in chief and in response to questions asked of him by the magistrate, the appellant said:
“All right. What about the fail to notify the change of address on your licence?‑‑‑As far as that goes, it was only a matter of weeks, if not a short time, between 44 Sunrise to – and 6 Bulleen Way. It was only a matter of a short time. I don’t think it was eight weeks. It was – I think it was a hell of a lot less within the timeframe.
Well, you said seven to eight weeks in the interview, didn’t you?‑‑‑Well, when I’m stopped, I think I recall that I gave a couple of 8s in the conversation, which are linked to another one, and I have a pattern of repeating myself a lot of times and relating things which are not really relevant. I believe that it was done within a reasonable time within a matter of weeks and that the constable, if it was a couple of days over, or a week over, would have the human power of discretion, especially after his police station has unloaded me with the largest amount of fines ever given in Burrum Heads to one person for such minor offences – alleged offences and the amount of wasted effort and human resources which has gone into this case and other fines wasting court time and wasting everybody’s time and achieving bugger all.
Yes. What else about the offences, not about all these other events that have occurred between you and police officers?‑‑‑I believe I acted reasonable by human standards. I am not a machine. I’m not a robot. I acted reasonable by human standards.
Okay?‑‑‑And that another thing also which comes to my mind, people are not known in Burrum Heads by their address. They are known by their physical – who they are. Their mail comes to a general store. People pick it up from a general store. There is no mail delivery. You will note that nobody has mail boxes in Burrum – well, hardly anybody has mail boxes in Burrum Heads, such as in Hervey Bay. Mail goes to a general store. People pick it up. Even people finding homes looking for a person or a property have a problem because nobody has number 8, number 2 or number 1. Hardly anybody has that written on them. Some people are starting to write it on their driveway in case the ambulance is called, but most people don’t seem to have numbers. Most people don’t have mail boxes. People are known on a different level in Burrum Heads, as in Hervey Bay. It’s quite common in Burrum Heads for people to stop in the middle of the road and have a chat. If they’d done that in Boat Harbour Drive, it would be a major event and this power of discretion often used – we often see off‑duty police officers riding their push‑bikes around without a helmet, also exceeding the speed limit in Burrum Heads.
Yes. Anything else about these two offences?‑‑‑I plead not guilty.
Well, you did that a while ago?‑‑‑I confirm that, your Honour.
Yes. Nothing more? You said something about you’ve got all these things there about where you ‑ ‑ ‑?‑‑‑Yes. These are the properties, your Honour, the titles for – it’s got the address of Unit 2, 175 Burrum Street. We went from there to 179 Burrum Street and then we went to 6 Bulleen Way, which become Unit 1 and 2, 6 Bulleen Way and then the council, in its wisdom, said you can have number – Unit 2, number 6 classed as number 8. I built number 44 for my family over in Kiwi land, being half Australian and half Kiwi. I notice neither side really wants us, so – and so we’re here. So anyway, we’ve had – in the past 24 months, we’ve been through so many shifts and I suppose it was a way to find security and to find ‑ ‑ ‑
Well, you meant shifts. I thought you said ships?‑‑‑Shifts.
Shifts?‑‑‑Shifts, your Honour. I mean shifting from home to the other. Like, walking across the road and carrying your stuff across the road, doing a shift in about – in about 10 hours and then just carrying the stuff across the road, which has happened quite a few times, or shifting next‑door and to be rubber stamped, stopped at a check point by a police officer going out of their way after they’ve just walked away from a physical assault where I damaged my knee badly from somebody who took exception to the look on my face.”[28]
And in cross-examination there was the following:
“SNR CONST SPERLING: So when you were initially pulled over by police, the first question asked to you was to produce your licence which had the address 44 Sunrise Court, I think it is, on the address. It then asked you to state your address and straightaway you stated the address 8 Bulleen Way, didn’t you?‑‑‑Often when you’re put on a spot, you can say anything. If you’re going between the two homes ‑ ‑ ‑
So ‑ ‑ ‑
BENCH: But that’s where you were living at the time, weren’t you?‑‑‑Well, a lot of people go between two homes because I slept at Bulleen Way for several nights and then back up to number 44. A lot of people know I was sleeping at number 44 as well.
SNR CONST SPERLING: You said in your evidence that you lived at Unit 2, 172 – sorry, I forgot the street address?‑‑‑175 Burrum Street.
Burrum Street?‑‑‑That was a rental. That was a long time ago.
And then you moved to ‑ ‑ ‑?‑‑‑179 ‑ ‑ ‑
‑ ‑ ‑ 179 Burrum Street?‑‑‑179 and a couple of other properties.
And then you moved to number 6 Bulleen Way?‑‑‑Yeah.
At no time in your evidence‑in‑chief did you say you actually lived at Sunrise Crescent, did you?‑‑‑Yes, we did. Do you state to everybody every ‑ ‑ ‑
You said that you were ‑ ‑ ‑
BENCH: Hang on. You’re not there to make statements at the moment, but you’re answering the senior constable’s questions.
SNR CONST SPERLING: You said you were building at that – you were building that address for family and friends in New Zealand; is that correct?‑‑‑Who I built for is our business. It’s between us and our family.
I’m sorry, you said that in evidence‑in‑chief to this court. You said you were building for your friends in New Zealand and Australia and something about neither of them wanting you?‑‑‑No, I didn’t say that.
Okay?‑‑‑I didn’t say that at all. I didn’t mean it that way.
Okay?‑‑‑I’m just saying, you know, once you’re out of one country, bloody neither side wants you. I’m half Australian by me great grandparents and I’m proud to be here – here in Australia and standing up for Australia.
Okay. You also said to the officer on the side of the road when he asked how long have you lived at 8 Bulleen Way, you said seven to eight weeks; is that correct?‑‑‑I think that was related to the very earlier – no, the statement or sentence about – one sentence prior, which also had an 8 in it – an 8 or a 7 in it. If you can play that tape again, you’ll hear it.
BENCH: I’ve heard it twice.
SNR CONST SPERLING: Thank you, your Honour.
At no time did you tell the officer that you lived at two addresses, did you?‑‑‑When I’m put on a spot, as you can see, it takes me time to think. It takes me considerable time to think and it’s not a put on.
Why do you need time to think if you’re telling the truth?‑‑‑I have moderate to severe front lobal brain damage, which is proven. It’s not a put on ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ through my work in ‑ ‑ ‑
We move away from the ‑ ‑ ‑?‑‑‑Through my work in Australia.”[29]
- [36]For present purposes, it is only necessary to note that despite the confusion as to the precise association that the appellant had to the variously mentioned addresses and uncertainty as to when 44 Sunshine Crescent was sold and passed into the possession of the purchaser, there is no concession that he had, at the relevant time, severed any association with that address. On the contrary, at one point he maintained that he was going between two homes and was sleeping several nights at each place.
- [37]The critical point is that the evidence of the appellant served to put in issue the question of the severance of any association that the appellant had with the address at 44 Sunrise Crescent and that, most importantly, and without more, reliance upon the statements made on 20 December 2013, to the effect that the appellant had been living elsewhere for the past seven or eight weeks, must be seen as an insufficient basis for concluding that the offence under s 133(1) of the Driver Licensing Regulation was proven beyond reasonable doubt.
Conclusions
- [38]Accordingly, there should be an order confirming the conviction of the appellant for the offence pursuant to s 48(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010, and the orders made in consequence thereof. However, it is necessary to make an order setting aside the conviction of the appellant of the offence pursuant to s 133(1) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010, and necessarily also the orders made consequently and as to the sentence of the appellant. The remaining question is as to whether it is appropriate, as the respondent seeks, to make an order pursuant to s 225(2) of the Justices Act 1886, remitting the matter to the Magistrates Court for further hearing.
As may be seen from the terms of s 225(2), the power is exercisable as a matter of discretion and here the relevant considerations do not favour such an exercise of discretion. Particularly having regard to the principles discussed in R v Chong[30]and Director of Public Prosecutions (Nauru) v Fowler,[31]it should be concluded that it is not in the interests of justice to do so. The alleged offence is of a regulatory kind, rather than being of any greater significance and the cogency of the evidence in justification of a conviction is not sufficiently clear or doubtful, and to the extent that this may be a product of the lack of sufficient attention to the elements to be proved at the trial, it is not now appropriate to allow a second opportunity to rectify or supplement that insufficient case.[32]
Orders
- [39]Consequently, it is appropriate to order pursuant to s 225(1) of the Justices Act 1886, that the orders made in relation to the conviction of the appellant in the Magistrates Court at Hervey Bay on 14 April 2015, and:
- (a)in respect of the offence pursuant to s 48(1) of the Transport Operations (Road Use Management – Vehicle Registration) Regulation 2010, are confirmed; and
- (b)in respect of the offence pursuant to s 133(1) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010, are set aside.
Footnotes
[1] See complaints; each respectively sworn on 9/2/14.
[2] Similar observations are apposite to the form in which the appellant finally submitted his further submissions, on 8 March 2016.
[3] s 223 Justices Act 1886 and see: Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7; and cf: Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009]QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakaji [2013] QCA 319 and White v Commissioner of Police [2014] QCA 121.
[4] Ex. 1, at T3.29-T4-52.
[5] Ex. 1, at T2-18-3-27.
[6] D5.39-41.
[7] D5.5-8.
[8] D4.34-5.3 – 5.10-16.
[9] D5.18-24.
[10] T1-31.18-20.
[11] T1-31.35 – 1-32.30.
[12] It may be noted that since 1/1/15 and pursuant to amendments by s 48 and 51(1) of the Transport Legislation and Another Regulation Amendment Regulation (No. 2) 2014, s 133(1), has included reference to an additional obligation: to advise any change of “current postal address”, if there is one and as that concept is defined in Schedule 9.
[13] D5-26-36.
[14] Unless otherwise indicated the references to the Driver Licensing Regulation will be to the Reprint of that Regulation, as at 20/12/13.
[15] In the addendum outline of submissions, filed on 19 February 2016 and specifically to address these issues.
[16] It may be noted that this definition has been in these terms since it was amended by s 29 and Schedule 2 of the Corporations (Ancillary Provisions) Act 2001 No. 45, on 28 June 2001.
[17] See Stoke-On-Trent, Borough Council v Cheshire County Council [1915] 3 KB 699 at 706.
[18] [2005] SASC 472, at [16]-[18].
[19] Ibid at [12]-[15].
[20] See Respondents Addendum Outline of Submissions, at [3.11]-[3.12].
[21] See Bropho v Western Australia (1990) 171 CLR 1 at 20.
[22] See Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [9], [28] and [37].
[23]Statutory Instruments Act 1992, s 37.
[24] See s 78 TORUM.
[25] See also definition of “corresponding law”.
[26] The TORUM also contains a definition of the term “non-Queensland driver licence” by reference to the separately defined terms: “interstate licence” and “foreign driver licence”.
[27] D4.44-5.3.
[28] T1-32.32-1-33.14 “face”.
[29] T1-34.27-1-35.46.
[30] [2012] QCA 265 at [24]-[27].
[31] (1984) 154 CLR 627.
[32]King v R (1986) 161 CLR 423.