QPS v Manning[2015] QMC 17

MAGISTRATES COURT OF QUEENSLAND

1. [1]
   John Frederick Manning is charged with the offence that on the 14 June 2014 at Bundaberg in the Magistrates Court District of Bundaberg in the State of Queensland he did drive a motor vehicle namely a truck on a road namely Goodwood Road Bundaberg he not being at that time the holder of a driver licence authorising him to drive that vehicle on that road and at the time of committing the offence he was disqualified by a court from holding or obtaining a driver licence.

2. [2]
   The Prosecution has called Sgt Barry Stevens, Senior Constable Timothy Lowth to give evidence on their behalf. The defendant gave evidence.

3. [3]
   The Court also called Karl Oberhardt, a Court registry officer. In R v Apostilides (1984) 154 CLR 563, the Court outlined six key principles in relation to the Prosecution duty to call witness and the fifth principle is that “Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.” I acknowledge it is not part of an adversarial system but in the interests of justice and fairness I called the witness who was available for Mr Manning. The procedure did not prejudice any party to these proceedings.

4. [4]
   The burden of proof lies with the Prosecution to prove each and every element of the offence and the standard of proof is beyond reasonable doubt. The Defendant has given evidence. He is entitled, also, in this particular case to insist that the Prosecution prove their case. The Prosecution always bears the burden of proving the guilt of the Defendant beyond reasonable fact, even to the extent where the Defendant gives evidence the onus is still on the Prosecution.

5. [5]
   In relation to this particular matter, I have, during the course of the trial, had an opportunity of listening to and observing the demeanour of witnesses that have given evidence. This has assisted me in assessing credibility, although I accept that there is a need to keep the appearance and demeanour of a witness in perspective and the weight of that aspect in the light of other, more objective considerations.

Disqualified Driving – The Law

6. [6]
   The Prosecution must prove that:

1. The Defendant did drive – drive means the physical control over the movement and direction of a motor vehicle and generally something to do with the propulsion, in a substantial sense. The vehicle must be moving and physical control over the vehicle must be accompanied by conscious exertion over the controls (Allan v Quinlan ex parte Allan [1987] 1 Qd R 213) and the schedule 4 of Transport Operations (Road Use Management) Act 1995 (TORUMA) defines driver – (a) means the person driving or in charge of any vehicle, tram, train, vessel, or animal; and (b) includes, in relation to a trailer – (i) the person driving or in charge of the vehicle to or by which the trailer is attached or drawn; and (ii) for chapter 3, part 3, if the trailer was but is no longer connected to the towing vehicle in a combination – the driver of the towing vehicle in the combination to or by which the trailer was, or apparently was, last attached or drawn:

2. A motor vehicle – defined in schedule 4 of TORUMA means a vehicle propelled by a motor that forms part of the vehicle, and –

1. (a)
   includes a trailer attached to the vehicle; but

2. (b)
   does not include a motorised scooter, a personal mobility device or a power-assisted bicycle.

3. On a road – defined in schedule 4 of TORUMA –

1. (a)
   includes a busway under the Transport Infrastructure Act 1994; and

2. (b)
   includes area that is –

1. (i)
   open to or used by the public and is developed for, or has as one of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or

2. (ii)
   dedicated to public use as a road; but

3. (c)
   does not include an area declared under a regulation not to be a road.

Example of an area that is a road – a bridge, cattle grid, culvert, ferry, ford, railway crossing, shopping centre car park, tunnel or viaduct.

4. And at the time was disqualified by court order from holding or obtaining a driver licence.

Mistaken Advice

7. [7]
   On 16 June 2004, the High Court of Australia decided in Ostrowski v Palmer [2004] HCA 30; 218 CLR 493; 206 ALR 422 that the defence of honest and reasonable mistake of fact cannot be used on the basis that a commission of a strict liability offence were induced by the provision of misleading advice from a government agency.

8. [8]
   In that case, the Mr Palmer was charged with a contravention of reg 34 made under the Fish Resources Management Regulations 1995 (WA). That regulation prohibited the holder of a commercial fishing licence from fishing for rock lobsters in an area described as waters surrounding Quobba Point. The offence created by the regulation consisted of three elements: being the holder of a commercial fishing licence; fishing for rock lobsters; and doing so in the waters surrounding Quobba Point. The Respondent’s conduct satisfied all three elements. Furthermore, the Respondent made no mistake, and had no erroneous belief, about any of those elements, or any matter relevant to them. He knew he held a commercial fishing licence; he knew he was fishing for rock lobsters; and he knew where he was fishing. What he did not know was that his conduct was prohibited.

9. [9]
   Mr Palmer had previously requested a copy of the regulations (on about 11 November 1998). He asked for a copy of the current regulations to cover the 1998-1999 fishing season for rock lobster in Zone B from the Fremantle office of Fisheries WA. He was told copies would not be available until 13 November. He returned on that day. An office employee told him that copies of the regulations were still unavailable for collection by members of the public. The employee offered to photocopy the copy of the regulations held by the Fremantle office, and the Respondent accepted. The employee gave the Respondent some additional documents containing information about fishing areas, however, none of these documents mentioned reg 34 of the Regulations.

10. [10]
    Believing that he had been provided with a complete set of relevant regulations Mr Palmer was unaware that fishing in the relevant area was prohibited by law. Mr Palmer’s explanation of his lack of knowledge of the regulation was not challenged by evidence to the contrary, and was accepted by the Magistrate. He contended that this explanation gave him a defence under section 24 of the Criminal Code. Section 24 provides that a person who does an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act to any greater extent than if the real state of things had been such as he believed to exist. Section 24 must be read together with section 22, which states that the rule that ignorance of the law does not afford an excuse for an act which would otherwise constitute an offence. Mr Palmer argued that his present case is governed not by section 22, but by section 24. The outcome of the appeal turned upon the application of sections 22 and 24 to the case.

11. [11]
    The judges did not dispute that sections 22 and 24 apply to the offence in respect of which Mr Palmer was convicted. The Court said that these sections should be construed with reference to the applicable common law principles relating to mistake of fact and mistake of law. In Thomas v R [1938] VLR 32; (1937) 59 CLR 279; [1938] ALR 37, Dixon J noted that sections 22 and 24 (and the equivalent provisions in the other Code States) state “with complete accuracy” the common law principle that a mistaken belief as to a matter of fact is a defence to a criminal or statutory offence, but a mistaken belief as to a matter of law is not a defence to such a charge.

12. [12]
    The Court held that the only mistake that Mr Palmer made was a mistake that resulted from his ignorance of the law and that he could not rely on the defence of mistake of fact. There was no mistake of fact made by Mr Palmer. He erroneously believed that no law prohibited him from fishing for rock lobster in that area. It is irrelevant that his belief was induced by the conduct of a Fisheries WA employee. The fact that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA cannot convert what is a mistake of law into a mistake of fact.

13. [13]
    At [59] the Court added that, “[t]hus, in any situation where a person’s belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under section 24. To find otherwise would expand the scope of the defence in section 24 to an unacceptable extent. It would also undermine the principle that ignorance of the law is no excuse”.

14. [14]
    The Court went on to say that a mockery would be made of the criminal law if accused persons could rely on, for example, erroneous legal advice, or their own self- serving understanding of the law as an excuse for breaking it, however relevant such matters might be to penalty when a discretion can often be exercised.

15. [15]
    In an article by Dr Warwick Gullett, “Relying on fishy advice: The Ostrowski decision”^[1] noted “…at the appeal stage in the Supreme Court of Western Australia, Mr Palmer sought to rely on an alternative defence. Canadian cases were cited in support of the proposition that there could be a defence of “officially induced error”. However, the Supreme Court decided (with the High Court subsequently agreeing) that the defence could not be considered because it had not been raised at first instance in the Magistrates Court. The Prosecution had accepted the facts as found by the Magistrate bit might have presented its case differently if it were aware that this novel defence would be raised at a later stage. It would have been unfair to the prosecution to allow consideration of the defence at the appeal stage.”

16. [16]
    He went on to say: “Even though this defence could be raised in future litigation where similar facts are presented, there would be difficulties in allowing it in light of the interpretative practices adopted for states with Criminal Codes and for it to extend to exculpate an accused mistaken solely in relation to a matter of law.”

17. [17]
    My reading of Palmer v Ostrowski (2002) 26 WAR 289 is that the Court suggested (obiter) the Canadian doctrine of the defence of officially induced error that in view of the statutory provisions in section 24 of the Criminal Code there was no room for its application in Western Australia.

18. [18]
    Mr Manning appears to be arguing the concept of “officially induced error” which operates in Canada in exceptional circumstances to defeat the maxim that “ignorance of the law is no excuse.” It is my duty to consider all possible defences which arise even when not raised by the Defendant: Fingleton v R (2005) 79 ALJR 1250 at [77] – [80].

19. [19]
    In Canada, in order for the defence to apply to rebut the presumptive position that ignorance of the law is no excuse, there are five elements that must be met:

1. The accused mist have considered the legal consequences o his actions and sought legal advice.

2. The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question (in other words they must be state actors with apparent authority).

3. The legal advice must have been erroneous.

4. The accused must have relied upon that advice.

5. The accused’s reliance must have been objectively reasonable.

20. [20]
    The leading case is the decision of the Supreme Court of Canada in R v Jorgensen [1995] 4 SCR 55 and the defence more recently discussed in R v Clifford, 2014 ONSC 2388.

21. [21]
    Such a defence has yet to find favour in England. See, for example, Surrey County Council v Battersby [1965] 2 Qb 194; [1965] 1 All ER 273; [1965] 2 WLR 378^[2] and Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; [1972] 3 All ER 232; [1972] 3 WLR 226.

22. [22]
    I note in Howell v Falmouth Boat Construction Co Ltd [1951] AC 837 a government officer, in his dealings with the respondents, was said to have assumed an authority, which he did not possess, to grant a particular licence. The House of Lords held (obiter) that the fact that the officer may have done so did not debar the Crown from enforcing a statutory prohibition or entitle the respondents to maintain that there had been no breach of it. Lord Simonds said, at 845: “The illegality of an act is the same whether or not the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy. I do no doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But that is not the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way, but that does not justify a different answer being given”.

23. [23]
    As to New Zealand, in Tipple v Police [1994] 2 NZLR 362, Holland J expressly commented at [64] that he did not consider that there was any need, in that case, to seek to introduce into the New Zealand law any doctrine of officially induced error.

24. [24]
    In Crafar v Waikato Regional Council [2010] NZHC 1855 the New Zealand High Court again considered the authorities on the principle of officially induced error, including Tipple, and the application of the principle in New Zealand. At paragraph 15 Andrews J held “Having reviewed the authorities referred to me, I accept Mr Pilditch’s submissions that the authorities do not establish the existence of a substantive defence of “officially induced error” in New Zealand at this stage. At its highest, all that can be said is that “officially induced error” may support an application for discharge without conviction under section 106 of the Sentencing Act 2002. This being an application made by a person who has either pleaded guilty to, or been found guilty of a crime, both the legal and evidential burden would rest on the application to establish that a discharge should be granted”.

25. [25]
    In New South Wales the defence has been rejected.

26. [26]
    Firstly, In Environment Protection Authority v Goulburn Wool Scour Pty Limited [2003] NSWLEC 200 (at 118) where pursuant to a finding of not guilty of the offence charged, Talbot J noted that “the concept has not, so far, been imported into Australian law, so far as this Court is aware”.

27. [27]
    And then in Environment Protection Authority v Unomedical Pty Limited (No 3) [2010] NSWLEC 198, Pepper J did not accept that the defence of officially induced error of law as a defence available to Unomedical at common law in Australia.

28. [28]
    Queensland has enacted the Criminal Code 1899 which seeks to provide a comprehensive statement of the criminal law.

29. [29]
    The Criminal Code is a codifying statute. A codifying Act gathers together all the relevant statute law on a given topic and restates it in such a way that it becomes a complete statement of the law on that topic. This aspirational view was certainly shared by Sir Samuel Griffith who ‘envisaged that the Code should be a collected and explicit statement of the criminal law in a form that could be ascertained by an intelligent person’^[3] or accessible to citizens^[4], whilst pointing out to the Attorney-General in his famous Explanatory Letter that the criminal law of Queensland was scattered throughout nearly 250 statues outside of the applicable common law.^[5] See also the comments in He Kaw The v R (1985) 157 CLR 523 and in Thomas v R (1937) 59 CLR 279 at 305-6, Dixon J said that sections 22 and 24 “state … the common law with complete accuracy.”

30. [30]
    An article “Developments in Canadian Criminal Law 1995” (Mackinnon and Quigley) (1996) 20 Crim LJ 321, the learned authors there make the important point that there has been what they describe as a fundamental difference in the interpretive approach taken in relation to the Canadian Criminal Code (modelled on the Stephen Code) by way of contrast with that taken in relation to the Griffiths based Codes in certain of the Australian States, including Queensland.

31. [31]
    The learned authors make the points –

“In Canada, the common law is frequently considered in the interpretation of the Code. In addition, some defences are derived from the common law while others are enshrined in the statute.

In contrast, the Australian Codes are generally considered complete and resort to the common law as an interpretative aid is limited to instances of ambiguity in the Code provision or where the language used has acquired a technical meaning at common law.

Comparisons of the criminal law of Canada and Australia must therefore take account of these differences in jurisdiction, the sources of criminal law, and the interpretative approaches.”

32. [32]
    The orthodox position in Australia of declining to take into the law prior to the code in its interpretation is stated in the joint judgment of Dixon and Evatt JJ in Brennan v R (1936) 55 CLR 253. An alternative approach is demonstrated by the judgment of Windeyer J in Vallance v R (1961) 108 CLR 57 at 74-76.

33. [33]
    Mason J in Sungravure Pty Ltd v Middle East Airlines Arliban Sal (1975) 134 CLR 1 at 22 pursued a middle course between these views indicating an ambiguity in the code will justify a resort to the common law. But the ambiguity must appear from the provisions of the code; it is not possible to resort to the common law in order to create ambiguity^[6].

34. [34]
    In Ostrowski v Palmer (supra) McHugh endorsed a second qualification of regard to words having a technical meaning that was expanded upon by Brennan J in Boughey v R (1986) 161 CLR 10 at 30: “It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law … The meaning of the words and phrases to be found in a Code is controlled by the context in which they are found by when the context does not exclude the common law principles which particular words and phrases impliedly import, reference to those common law principles is both permissible and required.” (footnote omitted.)

35. [35]
    This was said in the background of sections 22 and 24 (Criminal Code) of interpreting the phrase “any state of things” to be read as a reference to a matter of fact rather than a matter of law.

36. [36]
    In Queensland, a defence under section 24 of the Criminal Code (Q) failed in Loch (Unreported, Full Court of the Supreme Court of Queensland, 1 May 1957, Stanley, Mack and O'Hagan JJ) where the licensee of a hotel was prosecuted under the Liquor Act 1912 (Q) for keeping the hotel open for the sale of liquor outside legal trading hours – at 11am on a Sunday. The licensee contended that she was entitled to rely on section 24 because she believed, following advice given to her by a licensing inspector, that the legal trading hours were 10am to 12 noon on a Sunday. Stanley J (with whom Mack and O'Hagan JJ agreed) held that section 24 could not apply because: “at most [the licensing inspector] could only have been purporting to tell the licensee the contents of the Liquor Act and giving her a statement of law, and that what she had was an honest and reasonable but mistaken belief in a state of law, not a similar belief in a state of fact.”

37. [37]
    In Powell v Chief Executive Officer of Customs [2006] QDC 184, McGill DCJ at [62] said: As to the defence of “officially induced error”, it is I think sufficient to say that there appears to be nothing in the Criminal Code which would provide any defence on that basis, at least in the case of an offence of strict liability. If the error is as to the application or operation of statute law or subordinate legislation, there will be no defence whether the defendant is acting on official advice will not mean that the mistake is a mistake of fact, although if a defendant makes a mistake of fact on the basis of official advice the defendant may well be able to establish that his belief about the relevant fact or facts was reasonable. Ostrowski (supra) expressly did not deal with officially induced error as a separate defence: [7], [91].

38. [38]
    The Criminal Code 1899 in section 36 provides:

“36 Application of rules

3. (1)
   The provisions of this chapter apply to all persons charged with any criminal offence against the statute law of Queensland.

3. (2)
   Except for sections 22(3), 29 and 31, this chapter does not apply to regulatory offences.”

39. [39]
    In Renwick v Bell [2001] QCA 316; [2002] 2 Qd R 326; 123 A Crim R 128, Davies JA made some interesting comments regarding section 36 of the Code and criminal responsibility especially at [10] “… section 36 which specifically applies the provisions of Chapter V of the Code to all persons charged with any criminal offence against the statute law of Queensland” and further one “… because Chapter V represented such a fundamental change in the law of criminal responsibility, eliminating offences of strict liability, it was thought necessary to emphasise that the whole of the relevant law is contained in its provisions.”

40. [40]
    Defences under Chapter V of the Criminal Code 1899 are available for the offence Mr Manning is charged with but do not provide for a defence of “officially induced error”.

41. [41]
    The concept is not available as a defence under Queensland law.

The Evidence

42. [42]
    In relation to the evidence, Sergeant Barry Stevens testifies that on the 13 June 2014 he is working at his desk in the Bundaberg Police Station and spoke to Mr Manning by telephone for a couple of minutes. On the 14 June 2014 he was off duty, going to a personal engagement and at about 1:15pm he was driving on Goodwood Road, Bundaberg that goes into a long straight when he saw a truck approaching from the opposite in a northerly direction. He saw it was one of Mr Manning’s trucks as he saw John Manning Removals written above the cabin. The vehicle slowed down to about 90 kilometres per hour and he saw the truck had a big windscreen and Mr Manning was driving the truck and there were other people in the vehicle. The next day Sergeant Stevens checked Mr Manning’s traffic history and then spoke to Senior Constable Lowth.

43. [43]
    Senior Constable Lowth’s evidence was that he had spoken to Mr Stevens and he was the shift supervisor. He also spoke to Mr Manning when he was arrested and Mr Manning indicates that Lowth indicated to him that his licence was not valid. Mr Manning raises the point that he did not say it was not current at that time.

44. [44]
    Mr Manning’s evidence is that he does not recall driving on Goodwood Road this day. No licence check was done by police. He indicates it could have been another driver and no one rang him to speak to him about his driving. Even if he was driving he says he was not aware he was disqualified. He indicates he was disqualified by His Honour Mr Smith in November 2013. He lodged an appeal either that day or the next day. He spoke to Registrar Lavaring. Registrar Lavaring indicated, he says, that when he lodged the appeal his licence was still activated and he asked for it to be given to him in writing and Mr Lavaring would not provide written advice that his licence was still activated.

45. [45]
    Mr Manning appears to have then gone to the Transport Department, spoken to Laurie Tucker at Main Roads, who said that he would take steps to activate his licence and send it off to Townsville. He also indicates at one stage he was speaking to a Neil Wally from the Gladstone water police who told him his licence was disqualified. Mr Manning says he went in and spoke to Richters who indicated, “yes, it was disqualified and his disqualification was until the 13 February 2015.”

46. [46]
    He indicates he did not drive in this period. He then indicates he spoke to a number of other people including ringing Brisbane, and also got a certificate from Richters in relation to his driver’s licence.

47. [47]
    He also says that on the appeal that was before his Honour Judge Rackemann DCJ, he spoke to his Honour Judge Rackemann in relation to that particular matter. And in relation to that I note in para of the proceedings at 20 page 28 of the transcript:

APPELLANT: While you were in, what was in place?

HIS HONOUR: The magistrate gave you a three-month disqualification. I’ve just left that place.

You’ve left that in place?

Yes.

So that’s been already served. Was it stayed pending, Mr Nardone?

No, your Honour. I’m just – I’m just looking at the legislation now to see if it’s automatically stayed.

HIS HONOUR: Could I ask you to assist Mr Manning in understanding that?

I will, your Honour.

After – after that – offer I adjourn, just can – I just – that – yeah. Your Honour,

I’ve been penalised twice for it already. I’ve been – we’re getting a transferred thing here where a disqualification period has started and ended and then, also, for the same offences, suspended me due to points. So they’ve done it twice to me.

Well, I’ve dealt with the matter which was before me, which is the appeal.

Yeah.

Mr Nardone has been helpful to you. He’s happy to stay behind and adjourn and explain to you what the situation is. You can ask him.

48. [48]
    So obviously from that, Mr Nardone was to explain the consequences of the dismissal of the appeal on his driver’s licence. And Mr Manning tells me, in his evidence that he spoke to Mr Nardone after the judge left. He showed Mr Nardone the letter and Mr Nardone indicated to him that he could drive and he should keep the letter.

49. [49]
    Apparently, after Sergeant Stevens saw Mr Manning driving, he spoke to Constable Lowth and a female officer went and spoke to Mr Manning and told him he was disqualified. They ended up having an argument over it, obviously, where Mr Manning said he was not and he indicated to the officer that was “bullshit, lady.” He also says that Lowth said he did not have a valid licence and handed him his traffic history, although there appears to be a number of certificates that have been provided that indicate various time when Mr Manning was disqualified, including a letter from Richters, who, again, gave Mr Manning on inquiry a certificate that does not indicate the disqualification from November to February but indicates the disqualification for May for a period of three months.

Discussion

50. [50]
    Mr Manning complains that the charge should be heard by a jury as provided for in the Australian Constitution.

51. [51]
    Mr Manning has a fundamental misunderstanding of the judicature of the State of Queensland and particularly as to the power of the State to maintain its own courts and which courts are adopted by the Commonwealth for the enforcement of the laws of the Commonwealth.

52. [52]
    In Forge v ASIC^[7] it was observed: “In Le Mesurier v Connor, Knox CJ, Rich and Dixon JJ cited the statement of Isaacs J in R v Murray; Ex parte the Commonwealth that ‘[t]he Constitution, by Ch III, draws the clearest distinction between federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilise the judicial services of State Courts recognises in the most pronounced and unequivocal way that they remain ‘State Courts’. Their Honours went on to say: “The Parliament may create Federal Courts, and over them and their organisation it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; that law, primarily at least, determines the constitution of the Court itself, and the organisation through which its powers and jurisdictions are exercised.”

53. [53]
    The short answer is the charge is in relation to a non-indictable offence (summary or simple offence) that is heard in a Magistrates Court of Queensland by a Magistrate sitting alone without a jury as it is an offence under Queensland legislation not Commonwealth legislation.

54. [54]
    For Mr Manning’s benefit I will explain why.

55. [55]
    In the first thirty-odd years after the arrival of the First Fleet in Sydney, New South Wales, in January 1788, the only “juries” used comprised of six military officers, chosen by the Governor, sitting with a military judicial officer, the Judge-Advocate.

56. [56]
    Under British legislation passed in 1828, a Supreme Court judge could grant trial by jury in civil cases on the application of either party, but amending legislation was needed in 1829 to permit Emancipists to sit as jurors.

57. [57]
    In 1883, criminal trial juries with twelve members were introduced in the Supreme Court, yet the accused could choose instead to be tried by a military panel of seven members. Not until 1839 was this option abolished.

58. [58]
    On 6 June 1859, Queen Victoria approved the creation of a new colony called Queensland.

59. [59]
    The Supreme Court of Queensland was founded on 7 August 1861 and six days after Mr Justice Lutwyche received his commission as a Supreme Court Justice for the new colony.

60. [60]
    Prior to separation from New South Wales the former naval officer, Captain John Wickham, tried minor crimes in the Moreton Bay district. More serious crimes were tried in the Supreme Court of New South Wales in Sydney. Although two years before separation the New South Wales Supreme Court exercised jurisdiction at Moreton Bay District and Judge Milford served until resigning in February 1859 and was replaced by Justice Lutwyche.

61. [61]
    As to the early history of lower courts, in his paper entitled “Early Development of the Queensland Magistracy”, the Honourable Mr Justice B.H. McPherson C.B.E gives the following account: “Transported to Australia the institution of courts of petty sessions and quarter sessions quickly became established, as did the practice of appointing stipendiary magistrates or, as they came to be known after 1810, “police magistrates” because of their function of supervising police. In the Moreton Bay District before Separation there were police magistrates at Brisbane, Ipswich, and Maryborough, as well as water police magistrates for the Brisbane and Wide Bat areas, and clerks of petty sessions at some nine other places.”^[8] See the article entitled “the Growth of the Lower Courts” by W.R. Johnston, Queensland Heritage, pp 15- 17 and John Lowndes; The Australian magistracy: from justices of the peace to judges and beyond; (1999) Judicial Conference of Australia.

Federation, with a Constitutional Provision for Jury Trial

62. [62]
    In 1901, the six colonies federated to become the Commonwealth of Australia. Under the Commonwealth Constitution, which entered into force on January 1, 1901, the former colonies transformed into states, retained their former general legislative powers over matters of criminal law and procedure, including the process of jury trial.

63. [63]
    The new central commonwealth Government obtained no general power to legislate on these matters, except in relation to the territories, over which it acquired plenary power.

64. [64]
    For practical purposes, the legislative powers of the commonwealth Government are confined to a number of specific subject-matters – for example, external affairs, interstate trade and commerce, taxation, and communications – and to matters relating to commonwealth Government institutions.

65. [65]
    Although the Commonwealth Constitution limits the federated government’s powers, the commonwealth can create criminal offences as part of such legislation, and has done so frequently. For example, corporate fraud offences and offences relating to the importation of prohibited drugs from overseas are Commonwealth offences, enacted under the commonwealth’s powers to regulate corporations and to control imports, respectively.

66. [66]
    Nonetheless, all commonwealth offences are tried in state or territory courts. Federal courts have been created by the Constitution itself – namely, the High Court, which functions both as the court of constitutional interpretation and the highest general court of appeal – and by commonwealth legislation (the Federal Court and the Family Court). None of these courts, however, possesses any original criminal jurisdiction.

67. [67]
    Accordingly, while federation set in motion the creation of an important body of commonwealth criminal law, it did not give rise to new trial procedures at the commonwealth level.

68. [68]
    But one provision of the Constitution, governing the trial of these offences in state courts, has a direct impact on criminal procedure.

69. [69]
    Section 80 of the Constitution begins with the words “[t]he trial on indictment of any offence against any law of the Commonwealth shall be by jury …”

70. [70]
    The guarantee in section 80 applies to prosecution on indictment for federal offences only.

Offences Arising Under the Common Law or Under a Statue of a State of a Territory

71. [71]
    The bulk of criminal offences in Australia arise under the common law or under state or territory statutes.

72. [72]
    Criminal offences in Australia including Queensland are classified between “indictable” and “non-indictable” (more normally called “summary”) offences. The distinction between these two classes of offence determines substantially, but by no means wholly, whether an offence will be tried before a jury.

73. [73]
    The observations of Dixon J, in Munday v Gill (1930) 44 CLR 38 at 86, are enlightening: “There is, however, a great distinction in history, in substance and in present practice, between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected, and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society.”

74. [74]
    An indictable offence under state or territory law is one which may be tried on indictment. If it is so tried, three things follow.

75. [75]
    First, the offence will be tried in a superior court – that is, the Supreme Court of Queensland or the District Court.

76. [76]
    Second, it will be prosecuted in the name of the Crown through a formal document under the hand of an Attorney-General, a Director of Public Prosecutions, or some other state-authorised officer.

77. [77]
    Third, a twelve-member jury will normally be empanelled.

78. [78]
    The characterisation of an offence as indictable is frequently stipulated expressly in the legislation creating it. Alternatively, it may be determined by a general provision to the effect that any offence carrying a maximum sentence above a specified limit – typically, one year imprisonment – is to be deemed to be indictable unless the contrary intention appears in the provision. The classification of an offence as indictable does not necessarily mean, however, that any charge laid for the offence must be tried on indictment.

79. [79]
    Although this is the rule for the most serious indictable offences, such as murder or rape, in a wide range of other such offences, the option exists between trying them on indictment or as summary offences in a Magistrates’ Court

80. [80]
    In some instances, these “hybrid” offences carry a substantial maximum penalty, such as imprisonment for ten years. The question whether such an offence will in a given case be tried on indictment or summarily is governed by one or more of a wide range of factors, generally spelled out in relevant legislation. These include, in particular, the seriousness of the criminal conduct alleged against the accused, the opinion or wishes of the accused, and the views of the prosecutor and of the court which would hear the case if it proceeded summarily.

81. [81]
    When a hybrid offence is tried summarily, a significantly lower maximum sentence is available to the court than if it were tried on indictment.

82. [82]
    By contrast, a proceeding for a non-indictable or summary offence is not, in formal terms, a “plea of the Crown.” It may be prosecuted by a police officer or a private citizen and it is tried by a magistrate or bench of magistrates, sitting without a jury.

83. [83]
    As to whether a charge of disqualified driving is indictable or a summary offence, the TORUMA, section 62(1) provides:

A proceeding for an offence against a Transport Act is a summary proceeding under the Justices Act 1886.

Schedule 4 defines “transport act” to include TORUMA.

84. [84]
    Under the Acts Interpretation Act 1954, section 44(1) and (2) provides:

3. (1)
   In an Act, a provision of the type mentioned in subsection (2) means that a proceeding for an offence, or a specified offence, against the Act is a summary proceeding under the Justices Act 1886.

3. (2)
   Subsection (1) applies to provisions of the following type –

1. (a)
   a provision to the effect that a proceeding for the offence is to be heard and decided summarily;

2. (b)
   a provision to the effect that a proceeding for the offence is to be heard and decided by or before justices or a magistrate;

3. (c)
   a provision to the effect that the offence is a summary offence or is punishable on summary conviction or summarily;

4. (d)
   a provision for an offence that does not expressly or impliedly make the offence an indictable offence.

85. [85]
    Summary proceedings under the Justices Act 1886 are before a magistrate sitting alone without a jury who constitutes a Magistrates Court to hear and determine the complaint/charge.

86. [86]
    As to the facts of this case, Mr Manning was convicted in the Bundaberg Magistrates Court on 14 November 2013 of making unnecessary noise and smoke and using a safe but otherwise defective vehicle on 17 March 2013. Amongst the penalties and orders made was an order that he be disqualified from holding or obtaining a drivers licence for three months.

87. [87]
    The disqualification took effect immediately as that is the date of conviction: see R v Cunningham [2005] QCA 321 per Jerrad JA stated: “… the other was the incorrect assumption that disqualification applied from the date of sentence whereas it is clear from the terms of section 187 of the Act that it applies from the time of the conviction.”

88. [88]
    However, Mr Manning, on the same day, filed an appeal to the District Court against conviction.

89. [89]
    The effect of commencing the appeal meant that the disqualification imposed “and without further order in that behalf, be suspended pending the determination of that appeal” as provided for in TORUMA, section 131(3A).

90. [90]
    On 23 May 2014, the appeal was dismissed in the Bundaberg District Court by his Honour Judge Rackermann.

91. [91]
    The effect of that order of dismissal was that the portion of the period of disqualification which had not expired when such suspension began to operate takes effect from the date of determination of that appeal: (see section 131(3B) TORUMA). That meant the three month disqualification was effective on and from 23 May 2014 and expiring on 22 August 2014.

92. [92]
    Unfortunately a letter to Mr Manning dated 14 February 2014 by Browyn Richters, Acting Manager (Customer Service Centre) Bundaberg informs Mr Manning that “The disqualification period was effective from 14/11/2013 and expired on 13/2/2014 for a period of 3 months.”

93. [93]
    A similar situation arose regarding a mistaken belief induced by the conduct of an employee of DTMR was in Lee v Commissioner of Police [2010] QDC 275 where Anita Lee was charged with disqualified driving. Ms Lee enquired with the Transport department and was told she was not currently disqualified and filled out a form, ticked a box which indicated that the driver’s licence she had had was, “lost”, which is the vernacular reference that the average person in  the street regularly uses to describe having been either disqualified or suspended, in respect of their driver’s licence and received a licence.

94. [94]
    Dearden DCJ obserced: “The decision in Ostrowski v. Palmer [2004] 218 CLR 493 sets out very clearly (per McHugh J 518) the following:- “… without more, a mistaken belief that an activity is lawful or authorised will be a mistaken belief as to a matter of law, rather than to a matter of fact. Accordingly, the fact that Mr Palmer’s mistake was induced by the conduct of an employee of Fisheries WA, cannot convert what is a mistake of law into a mistake of fact. For the purposes of s.24 of the Criminal Code, it is irrelevant whether the mistake of law is induced by incorrect information obtained from an official Government body or from any other third party or is induced by any other form of mistaken factual understandings. Thus, in any situation where a person’s mistaken belief as to the legality of an activity is based on mistaken advice, that person would not have a defence under s.24. To find otherwise would expand the scope of the defence in s.24 to an unacceptable extent. It would also undermine the principle that ignorance of the law is no excuse, a principle expressly provided for in s.22 of the Criminal Code. “Ms Lee had applied for and was given a drivers licence whilst disqualified. Because of the bureaucratic delays in updating the records as between the Department of Justice and the Department of Transport, that did not affect her legal status, and she remained a person disqualified from holding or obtaining a driver’s licence in Queensland.”

95. [95]
    Whilst I have some sympathy for Mr Manning’s position, there is no general power for a Magistrate to quash a charge properly preferred and decline a trial to proceed merely because they think that a prosecution of the defendant for the offence should not have been instituted: R v Humphrys [1977] AC 1 per Viscount Dilhorne at [24] and Lord Salmon at [46].

96. [96]
    As Byrne J said in R v Smith [1995] 1 VR 10 at [25], “… [it is] not part of the function of the judicial arm of the government to decide whether a citizen should be prosecuted or whether a prosecution is inappropriate”. Whether or not a criminal prosecution should be brought by the Crown is a decision for the executive arm of government. Therefore it is a matter for prosecutors to give consideration to exercising their discretion not to prosecute (or to discontinue a commenced prosecution) where the facts establish the existence of a blameless accused.

97. [97]
    Where a person is prosecuted for an offence, the arbitrary or unreasonable exercise of police discretion cannot be raised as a defence to liability. As Kerr J pointed out in Wright v McQualter (1970) 17 FLR 305 at 320: “So far as the courts are concerned, when offences are alleged to have been committed and the police make arrests and prosecutions follow, the role of the courts is simply to decide the question of guilt or innocence and the penalty to be imposed in the event of a finding of guilt. It is for other parts of the structure of democratic institutions in society to deal with the problems, if any, of selective law-enforcement.”

Conclusion

98. [98]
    In Ostrowski v Palmer (supra) at [85], Callinan and Heydon JJ stated: [a] mockery would be made of the criminal law if accused persons could rely on, e.g., erroneous legal advice, or their own often self-serving understanding of the law as an excuse for breaking it.

99. [99]
    The decision confirms that people must fully inform themselves of the laws that regulate their activities. It is in this sense that the Ostrowski case is important because in today’s highly regulated society there can be an enormous variety of circumstances in which people can misunderstand their legal obligations or be unaware of them. In the driver’s licence context, there is a complex and evolving array of legislation, regulations and license conditions. Even though nothing more can reasonably be expected of a person than to go to the relevant department and ask what specific laws apply to them, there are no grounds to escape liability inadvertently committed in reliance on misleading advice from any source – including senior government officials and barristers as the cases indicate.

100. [100]
     Like in Palmer and Lee, there are no grounds for Mr Manning to escape liability inadvertently committed in reliance on misleading advice from Ms Richters, a senior government official or from any other official or ignorance of the law.

101. [101]
     Mr Manning knew he had filed an appeal, but there is no evidence Richters knew about this. That would have an important bearing on her advice.

102. [102]
     In conclusion this is not a situation where it can be said that Mr Manning believed pn reasonable grounds that he was acting in accordance with the law, and that there was no intention on his part to break the law. If he had formed his belief in his mind, it was a result of wishful thinking and a failure on his part to take reasonable steps to ascertain the law after his appeal was dismissed.

103. [103]
     Mr Manning’s mistake is a mistake of law not fact.

104. [104]
     I find the Defendant guilty.