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Jones v Commissioner of Police[2023] QDC 113

Jones v Commissioner of Police[2023] QDC 113

DISTRICT COURT OF QUEENSLAND

CITATION:

Jones v Commissioner of Police [2023] QDC 113

PARTIES:

GREGORY JONES

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

657/2022

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

23 June 2023

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2023

JUDGES:

Smith DCJA

ORDER:

  1. The appeal is dismissed.
  2. The order of the Magistrates Court is confirmed.

CATCHWORDS:

MAGISTRATES – whether Magistrate was competent to hear the charge – jurisdiction to hear simple offences – whether trial was a fair one

TRAFFIC LAW – whether appellant guilty of failing to give way – whether sections 25 and 31 of the Criminal Code 1899 (Qld) were raised on the evidence and if so whether they were excluded by the prosecution – validity of infringement notice and effect of any on trial – whether legislation invalid – whether offender levy and demerit points are double punishment

SENTENCE – whether imposition of offender levy and demerit points constituted double punishment – whether the penalty was manifestly excessive 

Acts Interpretation Act 1954 (Qld) ss 7, 23, 49A, sch 1

Bill of Rights 1688 1 William and Mary sess. 2 ch 2

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) s 5

Childrens Court Act 1992 (Qld) s 14

Constitution Act 1867 (Qld) s 2

Corporations Act 2001 (Cth) s 206B

Criminal Code Act 1899 (Qld) s 7

Criminal Code 1899 (Qld) ss 2, 3, 16, 25, 31

Due Process of Law Act 1368 42 Edward 3 ch 3

Evidence Act 1977 (Qld) ss 43, 45, 46B, 48, 50

Human Rights Act 2019 (Qld) ss 31, 32

Imperial Acts Application Act 1984 (Qld) s 5

Justices Act 1886 (Qld) ss 19, 22A, 30, 42, 222, 223, 225

Magistrates Act 1991 (Qld) s 8

Penalties and Sentences Act 1992 (Qld) ss 3, 179A, 179C

Penalties and Sentences Regulation 2015

Police Powers and Responsibilities Act 2001 (Qld) ss 60, 382

State Penalties Enforcement Act 1999 (Qld) ss 15, 16, 27

Statutory Instruments Act 1992 (Qld) s 7

Transport Operations (Road Use Management) Act 1995 (Qld) ss 4, 80, 123V

Transport Operations (Road Use Management - Driver Licensing) Regulation 2021 (Qld) ss 256, 257, sch 2, sch 5 

Transport Operations (Road Use Management - Road Rules) Regulation 2009 (Qld) s 68

Uniform Civil Procedure Rules 1999 (Qld) rr 431, 371, 786

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, applied

Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; (2008) 169 FCR 85, cited

Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, cited

Kable v The Director of Public Prosecutions for New South Wales [1996] HCA 24; (1996) 189 CLR 51, distinguished

Kariapper v Wijesinha [1968] AC 717, applied

Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230, distinguished

Perte v Kahl (1976) 13 SASR 433, cited

R v GV [2006] QCA 394, discussed

R v NG [2006] QCA 218; [2007] 1 Qd R 37, applied

R v Rogers (1996) 86 A Crim R 542, applied

R v Turnbull [1907] VLR 11, applied

Re Criminal Proceeds Confiscation Act 2002 (Qld) [2003] QCA 249; [2004] 1 Qd R 40, distinguished

RTA v Weir [2004] NSWSC 154, discussed

South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1, distinguished

Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, applied

COUNSEL:

Self-represented appellant

Ms Thomas for the respondent

SOLICITORS:

Self-represented appellant

Office of the Director of Public Prosecutions (Qld) for the respondent

Introduction

  1. [1]
    The appellant appeals his conviction and sentence imposed in the Brisbane Magistrates Court on 21 February 2022. The appeal is pursuant to section 222 of the Justices Act 1886 (Qld) (“JA”). 
  2. [2]
    The appellant was charged with the following charge:

“That on 25 October 2020 at Bridgeman Downs [the defendant] being the driver of a vehicle namely a motor car at a place namely the intersection of Ridley and Graham Road with a stop sign failed to give way to a motor car vehicle or pedestrian at the said stop sign.”

  1. [3]
    The defendant pleaded not guilty to the charge but was convicted. He was fined $400 with no conviction being recorded.

Proceedings below

  1. [4]
    The Magistrate explained the procedure to the self-represented appellant.  The appellant indicated early in the proceedings that he was not going to give evidence.  The appellant took issue with the validity of the offence notice.  The prosecution noted that it had been properly issued under the Police Powers and Responsibilities Act 2001 (Qld).  The Magistrate found that the original infringement notice was valid by reason of section 382 of the Police Powers and Responsibilities Act. 
  2. [5]
    Constable Paul Ryan gave evidence that on 25 October 2020 he with another police officer, Senior Constable Heijboer, were travelling down Ridley Road, Bridgeman Downs approaching a stop sign at Graham Road.  They were behind a black Mitsubishi Lancer driven by the appellant.  A white sedan was approaching the intersection.  The Lancer pulled out into the intersection turning left.  The white sedan on Graham Road braked heavily, as a result of which the black Lancer stopped on the road, pulled left and let the white car drive past.  The police pulled in behind the black Lancer and observed the appellant was the driver of the vehicle.  Body worn camera footage was operated.  Police made the decision to intercept the appellant after he had failed to give way to the white vehicle.  Two photographs were tendered of the intersection.  In essence, the Lancer pulled out, the white car approached and slammed its brakes on hard and the horn was operated.  The appellant failed to give way.
  3. [6]
    In cross-examination, the officer agreed it was odd that the appellant stopped at the stop sign and then proceeded to drive off in front of the other vehicle.  The officer agreed the appellant was not under the influence of any drugs or alcohol.  The officer denied he was under pressure to issue any tickets. 
  4. [7]
    The next witness was Senior Constable Heijboer.  He gave evidence that they approached the stop sign with the black vehicle directly in front of their vehicle.  He looked up and saw the black vehicle had stopped.  He looked down to continue his work and then looked up again after hearing a car horn and heard Constable Ryan say: “wow he just pulled out.”  They then pulled over the Mitsubishi Lancer.  His body worn camera footage was played to the court as well.  In cross-examination, the witness conceded he was familiar with the intersection.  He thought the vision was clear. 
  5. [8]
    Despite having earlier indicated he would not give evidence, the appellant did give evidence.  He gave evidence he was nervous around police officers.  This is what really caused the incident – he was nervous.  In cross-examination, the appellant said he was 48 years of age, having held a licence for 30 years.  He had previously seen a police car before whilst driving and had been intercepted by the police.  He had admitted that he failed to give way to a vehicle at the intersection on 25 October 2020 and made admissions to police in this regard on that day.  In re-examination, he repeated his evidence that he was shocked when he saw the police car. This caused him to go into the intersection.
  6. [9]
    In its address, the prosecution submitted the evidence was clear.  Constable Ryan clearly saw the appellant fail to give way.  There was no reason for the appellant to go through the stop sign at all, he failed to give way.  The appellant made that admission both in the body worn camera footage and in the evidence box. 
  7. [10]
    The appellant submitted that he acted sensibly in light of his evidence.  He submitted that the police should have used their discretion not to charge him. 

Decision

  1. [11]
    The Magistrate referred to the charge and noted that the prosecution had to prove each and every element of the offence beyond reasonable doubt to succeed.  The Magistrate referred to the various witnesses called and the body worn camera footage.  The appellant on the footage admitted getting nervous when he saw the police behind him and said “if not for you guys turning up it would not have happened.”  The Magistrate summarised the evidence of the police and the appellant.  Ultimately, the Magistrate found there was no dispute that at about 7.50am on 25 October 2020 the appellant did pull out in front of the white car causing it to brake and beep its horn.  There was no doubt that the appellant failed to give way to a motor car vehicle or pedestrian at the said stop sign.  All of the elements had been proved beyond reasonable doubt.  The Magistrate was also satisfied the prosecution had negatived any defence in extraordinary emergency or compulsion.  In the circumstances, the appellant was found guilty of the charge.  As to penalty, the Magistrate had regard to the traffic history and the fact the matter had been taken to trial.  The maximum penalty was 20 penalty units and the prosecution sought 6 penalty units, being a fine of $822.
  2. [12]
    The Magistrate referred to the appellant’s traffic history, noting it had been reasonably good.  Ultimately, he decided to fine the appellant $400 and referred it to the State Penalties Enforcement Registry (“SPER”) for enforcement.

Grounds of appeal

  1. [13]
    The appellant in his notice of appeal alleges that the Magistrate acted outside jurisdiction and was not competent to hear the charge.  He also says that the infringement notice was invalid and the prosecutor took advantage of him being self-represented.  He submits that multiple breaches of the Human Rights Act 2019 (Qld) occurred.
  2. [14]
    In his written submissions, the appellant submits that he was nervous around the police because of childhood experiences and in this anxious state proceeded into the intersection.  It is further submitted that breaches of the Human Rights Act occurred and the law relating to failing to give way is an arbitrary, capricious and invalid law.  It is submitted that his constitutional rights were impacted and he was fraudulently dealt with.  He submits that the Magistrates Court and prosecution failed in their duty.  He also submits that the offender levy and the 3 demerit points are extrajudicial punishment and invalid.
  3. [15]
    He submits the legislation for this offence is also invalid.
  4. [16]
    He expanded on these written submissions in oral argument:
    1. (a)
      The Crown outline, affidavit and notice of address for service were invalid as the names of the author/deponent were not included in those documents.
    2. (b)
      The Magistrate erred in rejecting his argument that he was acting under duress or under an extraordinary emergency.
    3. (c)
      He had a variety of complaints against various bodies which proved a lack of “due process”,[1] including Police Prosecutions because they had not negotiated the charge; he should not have been charged by reason of the objectives in section 4 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”); the proceedings were void by reason of para 16(a) above; the hearing breached Chapter III of the Constitution; the infringement notice was not signed and did not include a name; SPER unlawfully increased the fine; the SPER notice was not signed; there was no signature on the court brief and no brief checker’s signature; the police were rude to him; he received unfair treatment; the Director of Public Prosecutions (“DPP”) had not put names in their documents; he was personally attacked at the trial by the prosecutor; officers at SPER failed to give him their names.
    4. (d)
      The authorities had not acted as model litigants.       
    5. (e)
      The law was invalid.
    6. (f)
      The hearing was not fair, contrary to the Human Rights Act 2019 (Qld).
    7. (g)
      He was unlawfully detained and unlawfully breath tested.  
    8. (h)
      The Magistrate was only a Childrens Court Magistrate.  
    9. (i)
      The fine was excessive.
    10. (j)
      There was extrajudicial punishment with the imposition of the offender levy and the demerit points.
    11. (k)
      The reasons of the Magistrate were inadequate.   

Respondent’s submissions

  1. [17]
    The respondent refers to the circumstances of the case.  It submits that the Magistrate did have jurisdiction.  It is further submitted that the Court was competent to deal with the matter.  It is further submitted the infringement notice was correctly issued.  It is further submitted the appellant was appropriately cross-examined.  It is submitted that no defence was raised to the charge.  It is submitted that the traffic offence law is valid.  It is submitted that the imposition of the offender levy and loss of demerit points was lawful.
  2. [18]
    In oral submissions the Crown submitted:
    1. (a)
      The documents which were relied on by the DPP complied with the Rules. 
    2. (b)
      The arguments as to “due process” were irrelevant as the Court has the powers specified in section 225 of the JA.
    3. (c)
      The police had the power under section 60 of the Police Powers and Responsibilities Act 2000 (Qld) to intercept the appellant and conduct a breath test.
    4. (d)
      The Magistrate dealt with the Chapter III argument and correctly dismissed it.
    5. (e)
      The Court can be constituted by a Magistrate and the Magistrate here was a Magistrate.
    6. (f)
      The Magistrate conducted a fair hearing and followed “due process.” 
    7. (g)
      The infringement notice complied with the legislation and in any event did not affect the prosecution.
    8. (h)
      Any defences raised were correctly excluded.
    9. (i)
      The offender levy and the imposition of the demerit points were not double punishment. The loss of demerit points was a consequence of the conviction.
    10. (j)
      The legislation is not invalid and is for peace, order and good government of the State.
    11. (k)
      There was sufficient evidence to support the conviction; procedural fairness was observed by the Magistrate, sufficient reasons were given and the penalty was modest when one compares it with the maximum fine.[2]

Discussion

  1. [19]
    In my view, the respondent’s documents were valid. The outline of argument complied with the Practice Direction,[3] the affidavit with UCPR 431 and the notices of address for service with UCPR 786. In any event, by reason of UCPR 371, any irregularity did not affect their validity.
  2. [20]
    As to the arguments about due process they are not relevant to the appeal here. This Court is to determine the matter under the JA. Section 223 of the JA provides the appeal is to be conducted by way of rehearing on the original evidence. New evidence can only be admitted if there are special grounds to do so.
  3. [21]
    In Teelow v Commissioner of Police[4] Muir JA held at [4]:

“It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is a result of some legal, factual or discretionary error …”

  1. [22]
    Furthermore, the powers of this Court are set out in section 225 of the JA.
  2. [23]
    My focus is to determine whether there was an error in the trial itself.
  3. [24]
    Dealing with the question of jurisdiction, the Magistrate was appointed as a Magistrate on 16 October 2017.  He had jurisdiction to decide the appellant’s trial.  A Magistrate may exercise throughout the state all the jurisdictional powers and functions conferred on a Magistrate by or under any state law by reason of section 8 of the Magistrates Act 1991 (Qld).  It was irrelevant that he was appointed a Childrens Court Magistrate as well because this did not affect his appointment as a Magistrate or powers as a Magistrate (section 14 of the Childrens Court Act 1992 (Qld)).
  4. [25]
    The appellant submitted that the appointment of the Magistrate was not proved.
  5. [26]
    There is a presumption of regularity as to the validity of the appointment of public officers and the onus is on the person challenging validity to prove this.[5] I consider this principle applies to the present case.  
  6. [27]
    Regardless, section 43 of the Evidence Act 1977 (Qld) provides that Judicial Notice must be taken of every Act and every statutory instrument. A statutory instrument is defined in schedule 1 to the Acts Interpretation Act 1954 (Qld) as the meaning given in the Statutory Instruments Act 1992 (Qld). Section 7 of this Act defined a “statutory instrument” as inter alia a proclamation or notification of a public nature. The Queensland Government Gazette No 51 dated 20 October 2017 is a statutory instrument. It notes the appointment of the Magistrate as a Magistrate under the Magistrates Act 1991 (Qld). I take Judicial Notice of this. I also note that the production of a document purporting to be the gazette shall be evidence the document is the gazette (see section 45 of the Evidence Act) and a court may inform itself about a statutory instrument any way it considers appropriate (section 46B of the Evidence Act). Sections 48 and 50 of the Evidence Act permit proof of an instrument being made by the Governor in Council by production of the gazette.      
  7. [28]
    I reject the appellant’s argument that the Court was not competent.  The cases he relies on are irrelevant. Kable v The Director of Public Prosecutions for New South Wales[6] was a case which considered the operation of Chapter III of the Constitution and whether preventative detention legislation was in breach of Federal Judicial Power. Equally, South Australia v Totani[7] concerned whether state legislation concerning serious criminal associations was in breach of Chapter III. Lane v Morrison[8] concerned the Commonwealth Parliament giving judicial power to a body which was not a court.    
  8. [29]
    The Magistrates Court had jurisdiction to hear this charge. Section 19 of the JA provides that justices have jurisdiction to hear trials of offences which are not indictable offences. The power of justices may be exercised by a Magistrate (see sections 22A and 30 of the JA).
  9. [30]
    The term “offence” is defined in section 2 of the Criminal Code 1899 (Qld) (“the Code”) as an act or omission which renders the person liable to punishment. Section 7 of the Criminal Code Act 1899 (Qld) provides that a person may be prosecuted and convicted for an offence under the Code or another Act. Crucially, section 3 of the Code provides that a crime and misdemeanour is to be prosecuted on indictment and a person charged with a regulatory or simple offence may be convicted by a Magistrates Court. An offence not otherwise designated is a simple offence.
  10. [31]
    An offence against section 68(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) is a simple offence and may be prosecuted in a Magistrates Court.
  11. [32]
    Also, section 123V of TORUM provides that an offence against a Transport Act[9] is a summary proceeding under the JA. There is no dispute that the proceedings here commenced under section 42 of the JA.
  12. [33]
    I also note that section 49A of the Acts Interpretation Act 1954 (Qld) provides that if a provision of an Act authorises a proceeding to be instituted in a particular court, then the provision is taken to confer jurisdiction on the court. Section 23(1) of the Acts Interpretation Act allowed the Magistrate to perform his function as the occasion required.  
  13. [34]
    As to the argument that the infringement notice was not correctly issued, section 15 of the State Penalties Enforcement Act 1999 (Qld) deals with the form of infringement notices in Queensland.  There is no requirement for the notice to be signed by the issuer.  The infringement notice was valid here.  The notice contained all of the relevant details referred to in the section. In any event, I note section 16 of the State Penalties Enforcement Act 1999 (Qld) provides that the fact that an infringement notice has been or could have been served on a defendant does not affect the starting or continuation of the proceeding. There is no requirement to serve an infringement notice and a failure to does not affect the penalty imposed by a court for an offence. I also note that under section 27, where the offender fails to pay the amount on the infringement notice or elects to dispute the matter, a proceeding may be commenced under the JA.
  14. [35]
    The appellant has alleged the trial was unfair. Of course, under section 31 of the Human Rights Act 2019 (Qld) the appellant was entitled to the charge being decided by a competent, independent and impartial court. Also, under section 32 there were other particular rights to which he was entitled. Having read the entirety of the proceedings I am satisfied the trial was a fair one. I consider the Magistrate appropriately discharged his duty of explanation to the self-represented defendant.
  15. [36]
    The appellant says it was unfair that he was asked about events of the traffic infringement.  In my opinion, the questioning arose from the appellant’s evidence that he had a bad experience with a police officer in his youth and this gave rise to nervousness which explained why he went through the stop sign.[10]  But, in any event, the line of cross-examination was stopped by the Magistrate[11] and was not relied upon in reaching his decision.  Any error was immaterial. 
  16. [37]
    As to any defence raised, the fact that the appellant may have felt nervous is an explanation as to why he committed the offence but, in my view, did not excuse his conduct.
  17. [38]
    In my view it was doubtful that either section 25 or 31 of the Code were raised on the evidence.
  18. [39]
    Firstly, as to section 25 of the Code, a person is not criminally responsible if they commit an act in circumstances where there is a sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
  19. [40]
    An example is to be found in R v GV.[12] In that case, the appellant was charged with dangerous operation of a motor vehicle causing Grievous bodily harm. He said that he was driving on Gympie Road at a speed of 100km per hour in a 70km zone and drove through a red light colliding with another car. He said he was doing this as his vehicle was being pursued by “skinheads” and he was threatened by them. He was trying to escape them. Clearly in that case the defence was to be left to the jury.
  20. [41]
    The present case is quite different. The appellant may have been nervous around police but that did not justify him driving through the stop sign and failing to give way. I do not think there was a sudden or extraordinary emergency or that an ordinary person acting reasonably would have acted as the appellant did. I consider the prosecution had excluded this defence beyond reasonable doubt.
  21. [42]
    As to section 31 of the Code, I consider that was excluded as well. There was no violence threatened to the appellant (section 31(1)(c) of the Code). He did not do the act to save himself from serious harm or detriment threatened (section 31(1)(d) of the Code). In my view, the fact he felt nervous around the police was not sufficient to engage section 31 but even if it did, I consider the police disproved this defence beyond reasonable doubt.  
  22. [43]
    As to the equivalent defence of necessity, the New South Wales Court of Appeal in R v Rogers[13] noted at page 546:

“[T]he corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.”

  1. [44]
    It is not a defence that the appellant did not intend to fail to give way to the oncoming white car as he did not see it.
  2. [45]
    The section prohibits a driver from failing to give way to a vehicle or pedestrian at or near a stop line or stop sign.
  3. [46]
    The example to the right in section 68(3) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) makes this clear —

Jones v Commissioner of Police [2023] QDC 113

  1. [47]
    I do not find the traffic offence to be an invalid law.  There is no constitutional basis here to determine it is invalid.  It is irrelevant that the offence raises revenue. There is no basis to conclude that the legislation constitutes an impermissible interference with the exercise of judicial power.[14] It may be that revenue is raised but to my mind, regardless, the provision is an important one for the purposes of road safety. To my mind, it is a law designed for the peace, welfare and good government of the people of Queensland.[15]  
  2. [48]
    As to any allegation of illegal detention, the police had the power to stop the appellant for a prescribed purpose under section 60(1) of the Police Powers and Responsibilities Act 2001 (Qld). A prescribed purpose includes enforcement of a Transport Act or to conduct a breath test or saliva test. There was also a power to require a breath test under section 80(2) of the TORUM.
  3. [49]
    In all of the circumstances, I do not find any of the grounds of appeal against conviction to be established and I dismiss the appeal against conviction. 
  4. [50]
    Also, on my review on the rehearing, I did not detect any error such as to require the conviction to be set aside.

Sentence appeal

  1. [51]
    As to the sentence appeal, the appellant submits he received extrajudicial punishment in the form of loss of demerit points and payment of the offender levy. 
  2. [52]
    In my respectful opinion, neither of these constitutes extrajudicial punishment and does not form part of the sentence. 
  3. [53]
    On being sentenced for an offence, an offender becomes liable to pay the levy which is to be paid whether or not a conviction is recorded.  Section 179C of the Penalties and Sentences Act 1992 (Qld) specifies that the imposition of the levy is not a sentence or punishment and is in addition to any sentence imposed by the court for the offence.  Section 179A of the Penalties and Sentences Act 1992 notes that the purpose of the levy is to help pay generally for the cost of law enforcement and administration.  The levy amount is prescribed by the Penalties and Sentences Regulation 2015 (Qld).
  4. [54]
    The allocation of demerit points is prescribed by Chapter 7, Part 2 of the Transport Operations (Road Use Management - Driver Licensing) Regulation 2021 (Qld). 
  5. [55]
    Section 256 provides that on conviction for a demerits point offence, the Chief Executive may record the particulars of the offence, the penalty imposed on the person, the number of demerit points allocated for the offence and the day the offence was committed on the person’s traffic history. The number of demerit points is under schedule 5 (see section 257).
  6. [56]
    Failing to give way at a stop sign is a demerit points offence as it is an offence listed in schedule 5 of the Transport Operations (Road Use Management - Driver Licensing) Regulation 2021. The number of points for a contravention of section 68(3) of the Transport Operations (Road Use Management - Road Rules) Regulation 2009 is 3.
  7. [57]
    In my view, this consequence was an automatic legislative result of this particular conviction. He is not being punished twice for the same offence. Section 16 of the Code is aimed at a situation where a person is punished on the one occasion and is then punished on a different occasion. 
  8. [58]
    Similar examples may be found in other laws. If a person is convicted of a child sexual offence, then the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)[16] become applicable. As was noted in R v Bunton,[17] these are onerous, but the Court of Appeal did not suggest it was double punishment. In fact, it was a relevant sentencing consideration.
  9. [59]
    Similarly, if a person is convicted of an offence that is a contravention of the Corporations Act 2001 (Cth) carrying in excess of 12 months imprisonment then they are prevented from being company directors.[18]
  10. [60]
    Even offenders who are subject to the dangerous prisoner regime are not being punished. They are being held primarily for community protection. Such a scheme has been held to be constitutionally valid.[19]  
  11. [61]
    In R v NG[20] the Queensland Court of Appeal considered the meaning of punishment for the purposes of section 16 of the Code. In that case, the court found that expulsion of a student from school was not an act of punishment. This is because an act of punishment is to be found in the Code or some other statute. It was not punishment but a regulatory direction. The Court applied the Privy Council decision of Kariapper v Wijesinha.[21] In that case, the Privy Council held that the loss of parliamentary seats was not a punishment but more rather to “keep public life clean for the public good.”  As Keane JA noted, the issue is not how one perceives the effect of the action, but there needs to be reference to the purpose of the law which provides for the adverse consequences of the conduct. A sanction will not be characterised as punishment where there is a legitimate non-punitive object. 
  12. [62]
    In my respectful opinion, in this case the imposition of the demerit points is not a punishment. It is an administrative act for the public good taken after the conclusion of court proceedings. One purpose is to ensure drivers obey the traffic laws, there being a risk of loss of licence if they accumulate too many points. It is not part of any punishment under the Penalties and Sentences Act 1992 (Qld). Indeed section 3 of that Act notes that the Act collects into a single Act general powers of courts to sentence offenders. Further it does not inevitably lead to any loss of licence.
  13. [63]
    As was noted in RTA v Weir,[22] although the scheme may seem arbitrary and may cause hardship, the Court is bound to apply the law as laid down by the legislature.    
  14. [64]
    Both the allocation of the demerit points and payment of the offender levy were appropriate pursuant to the relevant legislation.
  15. [65]
    Finally, I do not consider the fine to be manifestly excessive. The Magistrate took into account the appellant’s financial position. He imposed a ticket amount which was well below the maximum penalty, despite the fact the appellant pleaded not guilty.
  16. [66]
    It was a modest penalty in the circumstances. 

Conclusion

  1. [67]
    In conclusion, I am satisfied there was ample evidence to support the conviction of the offence and that procedural fairness was observed at the hearing of the matter in the Magistrates Court. 
  2. [68]
    I am also satisfied that the penalty was entirely appropriate in this case.
  3. [69]
    In the circumstances, I make the following orders:
  1. The appeal is dismissed.
  2. The order of the Magistrates Court is confirmed.

Footnotes

[1]  He relied on the Imperial Acts Application Act 1984 (Qld), the Due Process of Law Act 1368 42 Edward 3 ch 3 and the Bill of Rights 1688 1 William and Mary sess. 2 ch 2 and submitted there was not due process here.

[2]  20 penalty units - $2669.00 with a penalty unit being $133.45 at the time.

[3]  District Court Practice Direction 5 of 2016.

[4]  [2009] QCA 84; [2009] 2 Qd R 489, referring to Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [44].

[5]Rex v Turnbull [1907] VLR 11 at p 15, applied in Perte v Kahl (1976) 13 SASR 433; Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104; (2008) 169 FCR 85.  

[6]  [1996] HCA 24; (1996) 189 CLR 51.

[7]  [2010] HCA 39; (2010) 242 CLR 1.

[8]  [2009] HCA 29; (2009) 239 CLR 230.

[9]  Section 7 of the Acts Interpretation Act 1954 (Qld) provides that an Act includes statutory instruments under the Act.  

[10]  Transcript of Magistrates Court proceedings, page 45.12.

[11]  Transcript of Magistrates Court proceedings, page 46.24.

[12]  [2006] QCA 394.

[13]  (1996) 86 A Crim R 542.

[14]  See for example, Re Criminal Proceeds Confiscation Act 2002(Qld) [2003] QCA 249; [2004] 1 Qd R 41. 

[15]  Section 2 of the Constitution Act 1867 (Qld).

[16]  See in particular, section 5.

[17]  [2019] QCA 214 at [30].

[18]  Section 206B.

[19]Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575.

[20]  [2006] QCA 218; [2007] 1 Qd R 37.

[21]  [1968] AC 717 at 736.

[22]  [2004] NSWSC 154 at [15].

Close

Editorial Notes

  • Published Case Name:

    Jones v Commissioner of Police

  • Shortened Case Name:

    Jones v Commissioner of Police

  • MNC:

    [2023] QDC 113

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    23 Jun 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Allesch v Maunz [2000] HCA 40
2 citations
Jump To
Cite 1 - [2000] HCA 40
Cite 2 - [2000] HCA 40
Fardon v Attorney General for Queensland (2004) HCA 46
2 citations
Jump To
Cite 1 - (2004) HCA 46
Cite 2 - (2004) HCA 46
Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575
2 citations
Jump To
Cite 1 - (2004) 223 CLR 575
Cite 2 - (2004) 223 CLR 575
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24
2 citations
Jump To
Cite 1 - [1996] HCA 24
Cite 2 - [1996] HCA 24
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51
2 citations
Jump To
Cite 1 - (1996) 189 CLR 51
Cite 2 - (1996) 189 CLR 51
Kariapper v Wijesinha (1968) AC 717
2 citations
Jump To
Cite 1 - (1968) AC 717
Cite 2 - (1968) AC 717
Lane v Morrison (2009) 239 CLR 230
2 citations
Jump To
Cite 1 - (2009) 239 CLR 230
Cite 2 - (2009) 239 CLR 230
Lane v Morrison [2009] HCA 29
2 citations
Jump To
Cite 1 - [2009] HCA 29
Cite 2 - [2009] HCA 29
Perte v Kahl (1976) 13 SASR 433
2 citations
Jump To
Cite 1 - (1976) 13 SASR 433
Cite 2 - (1976) 13 SASR 433
R v Bunton [2019] QCA 214
1 citation
Jump To
Cite 1 - [2019] QCA 214
R v GV [2006] QCA 394
2 citations
Jump To
Cite 1 - [2006] QCA 394
Cite 2 - [2006] QCA 394
R v NG[2007] 1 Qd R 37; [2006] QCA 218
4 citations
Jump To
Cite 1 - [2006] QCA 218
Cite 2 - [2006] QCA 218
Cite 3 - [2007] 1 Qd R 37
Cite 4 - [2007] 1 Qd R 37
R v Rogers (1996) 86 A Crim R 542
2 citations
Jump To
Cite 1 - (1996) 86 A Crim R 542
Cite 2 - (1996) 86 A Crim R 542
R v Turnbull [1907] VLR 11
2 citations
Jump To
Cite 1 - [1907] VLR 11
Cite 2 - [1907] VLR 11
Re Criminal Proceeds Confiscation Act 2002 (Qld)[2004] 1 Qd R 40; [2003] QCA 249
3 citations
Jump To
Cite 1 - [2003] QCA 249
Cite 2 - [2003] QCA 249
Cite 3 - [2004] 1 Qd R 40
Re Criminal Proceeds Confiscation Act 2002(Qld) [2004] 1 Qd R 41
1 citation
Jump To
Cite 1 - [2004] 1 Qd R 41
RTA v Weir [2004] NSWSC 154
2 citations
Jump To
Cite 1 - [2004] NSWSC 154
Cite 2 - [2004] NSWSC 154
South Australia v Totani (2010) 242 CLR 1
2 citations
Jump To
Cite 1 - (2010) 242 CLR 1
Cite 2 - (2010) 242 CLR 1
South Australia v Totani [2010] HCA 39
2 citations
Jump To
Cite 1 - [2010] HCA 39
Cite 2 - [2010] HCA 39
Teelow v Commissioner of Police[2009] 2 Qd R 489; [2009] QCA 84
4 citations
Jump To
Cite 1 - [2009] QCA 84
Cite 2 - [2009] QCA 84
Cite 3 - [2009] 2 Qd R 489
Cite 4 - [2009] 2 Qd R 489
The Commonwealth v Anti-Discrimination Tribunal (Tas) (2008) 169 FCR 85
2 citations
Jump To
Cite 1 - (2008) 169 FCR 85
Cite 2 - (2008) 169 FCR 85
The Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104
2 citations
Jump To
Cite 1 - [2008] FCAFC 104
Cite 2 - [2008] FCAFC 104

Cases Citing

Case NameFull CitationFrequency
Handley v Commissioner of Police [2024] QDC 1162 citations
1

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