Harrison v Wilkins

[1996] QCA 170

IN THE COURT OF APPEAL	[1996] QCA 170
SUPREME COURT OF QUEENSLAND

C.A. No. 93 of 1996

Brisbane
[Harrison v. Wilkins]

IN RE:

DAVID CAMERON HARRISON

Appellant

AND:

ROBERT JOHN WILKINS

Respondent

SPECIAL CASE STATED PURSUANT

TO S.227 OF THE JUSTICES ACT 1886

Fitzgerald P.
Davies J.A.

Williams J.

Judgment delivered 31/05/1996

Separate concurring reasons for judgment by each member of the Court.

ANSWER TO QUESTIONS RAISED PURSUANT TO S.227 OF THE JUSTICES ACT
1886:

1.         NO.

2.         IT IS UNNECESSARY TO ANSWER.

IN CONSEQUENCE OF THE ANSWERS THE COURT SHOULD REVERSE THE JUDGMENT BELOW AND RESTORE THE JUDGMENT OF THE MAGISTRATES COURT OF 5 JANUARY 1996. THE RESPONDENT SHOULD HAVE HIS COSTS OF THE PROCEEDINGS IN THIS COURT.

CATCHWORDS:	SPECIAL CASE STATED pursuant to s.227 Justices Act 1886 - Traffic Act ss.15, 16 and 20A - orders made pursuant to s.20A - automatic disqualification - offence against s.15 Traffic Act.
Counsel:	Mr. D. Morzone for the appellant Mrs. L. Clare with her Ms. L. McConnell for the respondent
Solicitors:	David J. Greenwood & Co. for the appellant Queensland Director of Public Prosecutions for the respondent
Hearing Date:	21 May 1996

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 31/05/96

The circumstances giving rise to this appeal are set out in the judgment of Davies JA., with which I am in substantial agreement.

For reasons which need not be analysed, the provisions of the Traffic Act 1949 referred to empower a court to make both an order disqualifying a person from holding or obtaining a driver’s licence (which includes a provisional licence) and an order directing that that person be issued with a provisional licence. Given that it is an offence to drive a motor vehicle on a road if disqualified from obtaining or holding a driver’s licence, the former order for disqualification, standing alone, must be intended to relate to any driver’s licence. If both orders are made - as in this case - the apparent conflict can only be reconciled by reading down the order for disqualification so as to relate, in such circumstances, only to driver’s licences other than a provisional licence, leaving the person to whom the orders are directed entitled to obtain and hold such a licence.

That was not seriously contested, nor was it disputed that if such a person
applied for a provisional licence it must be issued and, once issued, he or she would be
permitted to drive a motor vehicle on a road consistently with that provisional licence.
It is not to the point that, in this matter, an application for a provisional licence
had not been made and a provisional licence had not issued. The critical consideration
is that the person to whom the orders were directed was, by the second order, entitled
to obtain and hold a provisional licence. Such a person cannot be described as
disqualified from holding or obtaining a driver’s licence; he or she is only disqualified
from holding a driver’s licence except a provisional licence. A person entitled to obtain

and hold a provisional driver’s licence is not disqualified from obtaining or holding a

driver’s licence in the material sense.

I agree with the orders proposed.

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered the 31st day of May 1996

This is a special case stated for the opinion of this Court by a District Court Judge pursuant to s.227 of the Justices Act 1886. The material facts stated by the learned District Court Judge were as follows:

"1.

On 2nd November 1993, in the Magistrates Court at Cairns, the respondent in the District Court Appeal was convicted of a drink driving offence against section 16 of the Traffic Act.

2.

In accordance with subsection 20A(1) the respondent applied for an order that a provisional licence be issued.

3.

Upon hearing the application on 2nd November 1993 the Magistrates Court at Cairns made the following orders.

1.	That (the appellant) [sic] be disqualified from holding or obtaining a drivers licence for 2 years.
2.	That a provisional licence be issued to (the respondent) during the period of disqualification subject to the following restrictions .........

4.

The respondent failed to make application for a provisional licence pursuant to subsection 20A(7).

5.

On two occasions on 28th October 1995 the respondent drove a motor vehicle, a Toyota Station Wagon, on a road, namely Hardy Road, Edmonton.

6.

The respondent was charged on complaint before the Magistrates Court at Cairns with two offences against subsection 15(3) of the Traffic Act in identical terms as follows:-

That on the 28th day of October 1995 in the Magistrates District of Cairns in the State of Queensland Robert John Wilkins did drive a motor vehicle namely a Toyota Station Wagon on a road namely Hardy Road, Edmonton, the said Robert John Wilkins at that time and place being a person to whom the provisions of subsection (3) of section 15 of the Traffic Act 1949 applied was disqualified from holding or obtaining a drivers licence.

7.        In the Magistrates Court at Cairns on 5th January 1996 the following occurred:-

(a)	the learned Stipendiary Magistrate ruled that the respondent was not a person to whom the provisions of subsection (3) of section 15 of the Traffic Act 1949 applied; that is, he was not a person who was disqualified from holding or obtaining a drivers licence.
(b)	The learned Stipendiary Magistrate amended the complaint to allege two offences of driving without being the holder of a drivers licence against subsection 15(1) of the Traffic Act.
(c)	The learned Stipendiary Magistrate found the respondent guilty of the two offences of driving without being the holder of a drivers licence against subsection 15(1) of the Traffic Act.

8.        The appellant in the District Court, who was the complainant in the Magistrates Court appealed against the Magistrates Court decision.

9.        On 15th March 1996 White D.C.J. upheld the appeal. ..... "

His Honour's process of reasoning appears to have been that:

1.         "A person is disqualified within the meaning of sub-s.15(3) of the Traffic Act if there is subsisting at the material time an automatic period of disqualification by operation of ... a valid order of a court imposing a period of disqualification"; and

2. there was subsisting at the material time an automatic period of disqualification by operation of such an order because, notwithstanding the order made pursuant to s.20A(1), the disqualification order remained valid and in force.

The questions of law which the learned District Court Judge stated are:

"1.

Was the respondent in the District Court, at the material time, namely 28th October 1995, 'a person disqualified by an order under the Traffic Act, from holding or obtaining a drivers licence' for the purposes of subsection 15(3) of the Traffic Act.

2.

When an order is made under the Traffic Act disqualifying a person from holding or obtaining a drivers licence, followed by an order that the person be issued with a provisional licence pursuant to section 20A of the Act, is that person still 'disqualified by an order under the Traffic Act from holding or obtaining a drivers licence' for the purposes of subsection 15(3) of the Act for the duration of the period of disqualification."

As appears from the statement of material facts the respondent was convicted of an offence against s.15 of the Traffic Act 1949. That section provides relevantly as follows:

"(1)	A person shall not at any time drive a motor vehicle on a road unless at that time the person is the holder of a driver's licence authorising the person to drive that vehicle on that road.
...
(3)	A person who is guilty of an offence against sub-s.(1) and who at the time of the commission of such offence is disqualified -
...
(b) by an order made under this ... Act;
from holding or obtaining a driver's licence is liable to a penalty not exceeding ... ".

It was common ground between the parties that the respondent came within sub- s.(1). The question before this Court is whether, as well, he came within sub-s.(3); that is whether, on the occasions referred to, he was disqualified by an order made under the Traffic Act from holding or obtaining a driver's licence.

Section 20A(1), pursuant to which the respondent made the application referred to in para.2. of the above statement of facts and the learned Magistrate made the orders referred to in para.3., is in the following relevant terms:

"(1)	Where a person is convicted by a court of an offence under s.16 ...
and -
(a) by order of the court, is disqualified from holding or obtaining a driver's licence; or ...
the court may, where it has received an application from the person, make an order directing that the person be issued with a provisional licence."

The section goes on, in sub-s.(7) to provide that where a person in respect of whom an order is made under that section makes an application to a superintendent the superintendent shall issue a provisional licence to that person. It is plain from s.14 that a provisional licence, including one ordered to be issued by a court under s.20A, is a driver's licence for the purposes of the Act.

Once the court had made an order directing that the respondent be issued with a provisional licence it could no longer be said that he was disqualified from holding or obtaining such a licence. On the contrary he had a right to obtain one. It is true that, during the period of his automatic disqualification he would remain disqualified from holding or obtaining an open licence; but the driver's licence referred to in s.15(3) means one of the kind referred to in sub-s.(1); that is a "licence authorising the person to drive that vehicle on that road". The respondent was not disqualified from holding or obtaining a driver's licence of that kind because he was, by an order made under the Act, authorised to obtain one.

The first question of law stated must therefore be answered no. It is unnecessary to answer the second question. In consequence of the answer this Court should reverse the judgment below and restore the judgment of the Magistrates Court of 5 January 1996. The respondent Robert John Wilkins should have his costs of the proceedings in this Court.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 31st day of May 1996

I agree that the questions posed for consideration by the court should be answered as indicated in the reasons for judgment of Davies JA, and I agree with the reasons published by both the President and Davies JA.