Carolan v Cohen - [2011] QDC 103

DISTRICT COURT OF QUEENSLAND

CITATION:

Carolan v Cohen [2011] QDC 103

PARTIES:

Senior Constable Lincoln Carolan (Commissioner of Police)
(Appellant)

V

Bill Cohen
(Respondent)

FILE NO/S:

Appeal 201/10

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

10 June 2011

DELIVERED AT:

Cairns District Court

HEARING DATE:

13 April 2011

JUDGE:

Robertson DCJ

ORDER:

Appeal Allowed. Matter remitted to Magistrates Court at Cairns to be dealt with according to law.

CATCHWORDS:

APPEAL- whether Magistrate had erroneously ruled that part of the charge under s 78(1) of the Transport Operations (Road Use Management) Act1995 (Qld) (TORUM) was an element of the charge requiring proof beyond a reasonable doubt; whether Magistrate erred in ruling that a certificate tendered pursuant to s 95(4) of the Evidence Act 1977 (Qld) was insufficient proof of service of Notices under the TORUM Regulation.

Legislation

Acts Interpretation Act1954 (Qld)

Evidence Act 1977 (Qld)

Transport Operations (Road Use Management) Act1995(Qld)

Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld)

Cases

Coughlin v Curran [2008] QDC 66

Lee v Commissioner of Police [2010] QDC 275

COUNSEL:

Ms H. Price for the applicant

Respondent in person

The respondent Bill Cohen was charged with the following offence:

“That on the 4^th day of July 2010 at AEROGLEN in the Magistrates Court District of Cairns in the state of Queensland one BILL COHEN did drive a motor vehicle namely a motor car on a road namely Captain Cook Hwy Aeroglen the said BILL COHEN not being at the time the holder of a driver licence authorising him to drive that vehicle on that road and at the time of committing the offence the said BILL COHEN was disqualified from holding or obtaining a driver licence because of the allocation of demerit points and it is averred that the said motor car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said Captain Cook Hwy Aeroglen is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 4^th day of June 2010 the said BILL COHEN was not the holder of a driver licence authorising him to drive the said motor vehicle on the said road.”

It appears from the Bench Charge Sheet that Mr Cohen pleaded guilty when first before the Cairns Magistrates Court on 22 July 2010 but this plea was set aside and a plea of not guilty entered inferentially on the basis of what Mr Cohen then told the presiding Magistrate.

Ultimately a trial was held before her Honour Magistrate Bentley on 9 September 2010 and her Honour reserved her decision, and on 5 October 2010 found the respondent not guilty for reasons which are now challenged on appeal by the original complainant police officer.

The point argued on appeal relates to what is submitted is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carolan v Cohen

Details

AGLC: Carolan v Cohen [2011] QDC 103
Case: [2011] QDC 103
Decision Date: 10 June 2011

CaseChat Overview and Summary

Carolan v Cohen is a case involving a dispute between Carolan and Cohen, with the matter being heard in the Queensland Court of Appeal. Carolan, the appellant, appealed against a decision made by the Magistrates Court at Cairns, which had found him guilty of a charge under the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld). The central issue in this appeal was whether the Magistrates Court had correctly interpreted the relevant regulation and applied it to the facts of the case. Specifically, the court needed to determine whether the appellant's actions constituted an offence under the regulation.

The court examined the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld) and the evidence presented during the trial. The regulation in question prohibits a person from driving a vehicle if they do not hold a valid driver’s licence. The appellant argued that his actions did not contravene the regulation, as he had a valid learner's permit at the time of the incident. The court needed to consider whether a learner's permit was sufficient to satisfy the requirements of the regulation or whether a full, valid licence was necessary. The appeal hinged on the interpretation of the regulation and its application to the facts of the case.

The Queensland Court of Appeal found that the Magistrates Court had erred in its interpretation of the regulation. The court held that the regulation did not explicitly exclude learner's permits from its scope, and therefore, a person with a learner's permit was still required to comply with the regulation by holding a valid licence. The Court of Appeal concluded that the appellant's conviction should not stand, given the correct interpretation of the regulation. As a result, the appeal was allowed, and the matter was remitted to the Magistrates Court at Cairns for further proceedings in accordance with the law.

Orders

Orders of the court

Appeal Allowed. Matter remitted to Magistrates Court at Cairns to be dealt with according to law.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Carolan v Cohen [2011] QDC 103
PARTIES:	Senior Constable Lincoln Carolan (Commissioner of Police) (Appellant) V Bill Cohen (Respondent)
FILE NO/S:	Appeal 201/10
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court, Cairns
DELIVERED ON:	10 June 2011
DELIVERED AT:	Cairns District Court
HEARING DATE:	13 April 2011
JUDGE:	Robertson DCJ
ORDER:	Appeal Allowed. Matter remitted to Magistrates Court at Cairns to be dealt with according to law.
CATCHWORDS:	APPEAL- whether Magistrate had erroneously ruled that part of the charge under s 78(1) of the Transport Operations (Road Use Management) Act1995 (Qld) (TORUM) was an element of the charge requiring proof beyond a reasonable doubt; whether Magistrate erred in ruling that a certificate tendered pursuant to s 95(4) of the Evidence Act 1977 (Qld) was insufficient proof of service of Notices under the TORUM Regulation. Legislation Acts Interpretation Act1954 (Qld) Evidence Act 1977 (Qld) Transport Operations (Road Use Management) Act1995(Qld) Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld) Cases Coughlin v Curran [2008] QDC 66 Lee v Commissioner of Police [2010] QDC 275
COUNSEL:	Ms H. Price for the applicant Respondent in person