Hall v Bobbermen - [2009] QDC 188

[2009] QDC 188

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RYRIE

No 242 of 2009

BERNARD JOHN HALL	Appellant
and
KENNETH JOHN BOBBERMEN	Respondent
BRISBANE ..DATE 05/05/2009

JUDGMENT
HER HONOUR: This is an appeal brought on behalf of Mr Bernard

John Hall, who is the applicant or appellant, against Kenneth
John Bobbermen, the relevant police officer. Mr Hall, the
appellant hereinafter referred to as the appellant, was
convicted on his plea of guilty in the Holland Park

Magistrates Court of the offence of disqualified driving	10
pursuant to section 78(1) of the Transport Operations (Road Use Management) Act 1995.
At that point, before the Magistrate hearing the matter, he
was fined $650 and disqualified from holding or obtaining a	20
driver's licence for a period of two years. The Magistrate in
applying that penalty had regard to section 78 of the Act
hereinafter referred to as TORUM, particularly the maximum penalty and more importantly subsection 3 of section 78 of that which says, "that, if the person committed the offence	30
whilst disqualified by any Court order from holding or obtaining a driver's licence, a period of disqualification of at least two years but no more than five should be given".
The appellant raises concerns of the unfair and inequitable	40
result that he said he was unaware that the offence was being
committed was his - by honest mistake, that he considered
there was confusion and error on behalf of the police,
department of transport and his status re legal ability to
drive, resulting hardship, financial and otherwise.	50

At first blush, the submission made by the respondent that under the Justices Act the District Court does not have jurisdiction to hear an appeal against conviction where the

1-2

JUDGMENT

appellant, like Mr Hall, entered a free plea of guilty at
first instance is correct. However, that does not prevent the
Court from intervening where a person has entered a plea of
guilty to a charge that clearly did not exist at law. Indeed,

the Court is required to intervene on that basis.	10
The facts relating to the circumstances of the offence shall
be briefly put by me so it can be readily understood. Mr Hall
was intercepted by police on Logan Road, Holland Park West,
about 2 or 3.00 p.m. on the 7th of July 2008. He was asked	20
for his driver's licence at which he produced a valid New
South Wales driver's licence. Police then made inquiries and
were informed that he had been disqualified from holding or
obtaining a driver's licence on the 13th September 1989,
before a Court here in Queensland.	30
Mr Hall admitted he recalled that disqualification and notice
to appear was issued and upon the hearing before the
Magistrate, it has to be said, that the Magistrate hearing the
matter in Holland Park, Magistrate Springer, asked several	40
times of the police officer whether he had a valid New South
Wales licence at the time, which it was submitted…

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 Hall v Bobbermen

Details

AGLC: Hall v Bobbermen [2009] QDC 188
Case: [2009] QDC 188
Decision Date: 5/05/2009

CaseChat Overview and Summary

In the matter of Bernard John Hall, the appellant, versus Kenneth John Bobbermen, the respondent, the appellant contested his conviction and penalty for disqualified driving as imposed by the Magistrates Court of Holland Park. The case was brought before the District Court of Queensland in its appellate jurisdiction, with Judge Ryrie presiding over the appeal. The appellant argued that his plea of guilty was entered under a misapprehension of the law, contending that he was unaware that his previous disqualification from holding a driver's licence in Queensland did not extend to his possession of a valid New South Wales driver's licence. He claimed that this led to an unfair and inequitable result, with significant financial and personal hardship.

The legal issues before the court were whether the District Court had jurisdiction to hear the appeal despite the appellant's guilty plea and whether the plea of guilty was to an offence that did not exist at law. The court considered the provisions of the Transport Operations (Road Use Management) Act 1995 and the circumstances under which the appellant's licence was issued. The court noted that the appellant had a valid New South Wales driver's licence at the time of the offence, which, under the Act, qualified as a driver's licence authorising him to drive on the road. Consequently, the court concluded that no offence had been committed, as the appellant was not driving without a driver's licence in the legal sense.

The court found that, despite the appellant's guilty plea, the District Court did have jurisdiction to set aside the conviction if the plea was to a charge that did not exist at law. The court held that the Magistrate was misled by the prosecution, which failed to correctly apply the law in advising the court. As the appellant had a valid licence at the time of the offence, he was not disqualified from driving under the relevant Act, and thus no offence had been committed. The court set aside the Magistrate's order, vacated the fine, and lifted the disqualification on the appellant's driver's licence.

Orders