McMasters v Foley

[2001] QDC 54

DISTRICT COURT OF QUEENSLAND

CITATION:

McMasters v. Foley [2001] QDC 054

PARTIES:

GREGORY PAUL McMASTERS                   (Appellant)
And
TRACEY LEANN FOLEY  (Respondent)

FILE NO/S:

D2/2001

DIVISION:

Chambers

PROCEEDING:

Appeal pursuant to s.222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Gympie

DELIVERED ON:

6 April 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

22 March 2001

JUDGE:

Robertson DCJ

ORDER:

(1)        The appeal is dismissed;

(2)        The applicant will pay the costs of the respondent on the standard basis to be assessed or agreed.

CATCHWORDS:

STATUTES – Interpretation – Appeal under s.222 Justices Act against decision of Magistrate – respondent convicted of unlicensed driving, but additional element of aggravation not made out– whether respondent “disqualified” from driving at time of offence

Cases cited

Smith v. Corrective Services Commission (NSW) (1980) 147 CLR 134

Statutes judicially considered

Transport Operations (Road Use Management) Act 1995, ss 78, 150(1)(c)
Transport Operations (Road Use Management – Driver Licensing) Regulation 1999, s 24
Statutory Instruments Act 1992, ss 7(1), 21(1)(a)

COUNSEL:

M. Nicolson (for the appellant)
N.M. Cooke, RFD QC (for the respondent)

SOLICITORS:

Director of Public Prosecutions (for the appellant)
Wakka Wakka Legal Aboriginal Corporation (for the respondent)

1. The respondent was convicted in the Gympie Magistrates Court (Swan SM) of unlicensed driving. It follows that the Magistrate was satisfied to the requisite standard of the elements of the offence which is created by s.78(1) of the Transport Operations (Road Use Management) Act 1995 (TORUM Act). The charge before Mr Swan further alleged a circumstance of aggravation that the respondent was at the time she committed the offence:

“… a person to whom the provisions of s.78(3) of the TORUM Act 1995 applied (and) was disqualified from holding or obtaining a driver licence.”

1. The appeal is directed at the Magistrates ruling that on a proper construction of the Act and relevant regulations contained in the TORUM Regulation 1999, the circumstance of aggravation was not made out.  Mr Swan expressed his ruling in terms of the regulation relied upon by the prosecution (s.24 of the TORUM Regulation 1999) being “ultra vires to the Act and of no effect”, however a reading of his reasons for judgment as a whole clearly indicate that he further ruled that as a matter of law the circumstance of aggravation was not made out in the particular circumstances of the case.

1. There is no doubt that s.78(3) is a penal provision in that a maximum penalty of 34 penalty units or imprisonment for a term not exceeding 18 months is prescribed. Therefore, any ambiguity in construction is to be resolved in favour of the person accused: Smith v. Corrective Services Commission (NSW) (1980) 147 CLR 134.

1. It was common ground before Mr Swan that at the time alleged in the complaint the respondent was driving a motor vehicle; she was then a holder of a learner’s permit, and had accumulated more than four demerit points on her traffic history.  It is implicit in Mr Swan’s reasons (and not disputed by the appellant)…