Millar v Commissioner of Police
[2025] QDC 138
•4 August 2025 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Millar v Commissioner of Police [2025] QDC 138
PARTIES:
ANDREW JOHN MILLAR
(Appellant)v COMMISSIONER OF POLICE
(Respondent)FILE NO/S:
BD467/25
DIVISION:
Appellate
DELIVERED ON:
4 August 2025 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
4 August 2025
JUDGE:
Allen KC DCJ
ORDERS:
1. The appeal against conviction is dismissed.
2. The conviction of the appellant of the charge is confirmed.
CATCHWORDS
CRIMINAL LAW – APPEAL – APPEAL AGAINST CONVICTION – where the appellant was convicted after a trial of driving a motor vehicle without a licence, suspended due to accumulation of demerit points – whether the appellant was arraigned in accordance with law – whether there was evidence that the appellant was unlicensed at the time of the offence
Acts Interpretation Act1954 (Qld) s 39, s 39A
Justices Act 1886 (Qld), s145(1), s 222
Transport Operations (Road Use Management) Act1995 (Qld), s 78, s 123, s 124, s 127, schedule 1
Transport Operations (Road Use Management – Driver Licensing) Regulation 2021 (Qld), s 263, s 264, s 266
Transport Planning and Coordination Act1994 (Qld) s 36H, s 37Forrest v Commissioner of Police [2017] QCA 132
McDonald v Queensland Police Service [2018] 2 Qd R 612
Millar v Queensland Police Service [2025] QCA 14COUNSEL:
Appellant appeared self-represented
Ms K Ryan for the respondent
SOLICITORS:
Office of the Director of Public Prosecutions (Qld) for the respondent
Introduction
The appellant appeals against his conviction after a trial in the Magistrates Court at Brisbane on 24 February 2025 of the offence of driving a motor vehicle without a licence, suspended due to accumulation of demerit points, contrary to section 78(1) and (3)(b) of the Transport Operations (Road Use Management) Act 1995 (“TORUM”).
The charge
The defendant was charged in the following terms:
That on the 29th day of November 2023 at Brisbane in the Central Division of the Brisbane Magistrates Court District in the State of Queensland one Andrew John MILLAR did drive a motor vehicle namely a Kia motor car on a road namely Hampden Street Ascot the said Andrew John MILLAR 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 the said Andrew John MILLAR was disqualified from holding or obtaining a driver licence because of the allocation of demerit points and it is averred that the said Kia 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 the said Hampden Street 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 29th day of November 2023 the said Andrew John MILLAR was not the holder of a driver licence authorising him to drive the said motor vehicle on the said road.
Magistrates Court proceedings
The charge was mentioned in the Magistrates Court at Brisbane on 24 January 2024 with the presiding Magistrate identifying the matter as “Driving without a licence. Demerit points.” Upon the appellant indicating that he would be pleading not guilty to the charge, he was arraigned as follows:
HIS HONOUR: Right. Well, what I’m going to do is I’m going to arraign you. So you are charged that on the 29th of November 2023 at Brisbane in the State of Queensland, you did drive a motor vehicle, namely a Kia motor car, on a road, namely Hampden Street, Ascot, you at that time not being the holder of a driver’s licence authorising you to drive on that road. At the time of committing the offence, you were disqualified from holding or obtaining a driver’s licence because of the allocation of demerit points. It’s averred that the motor vehicle is a car, and that Hampton Road [sic] is a road. It’s further averred that on the 29th of November, you were not the holder of a licence authorising you to drive. How do you plead: guilty or not guilty?
DEFENDANT: Not guilty, your Honour.
The trial proceeded on 20 January 2025 and 24 February 2025.
On 20 January 2025, the prosecution called evidence from Plain Clothes Constable Jason McBride who testified that, at approximately 11.50 am on 29 November 2023, while driving an unmarked police vehicle on Nudgee Road, he observed a Kia motor vehicle enter the road and proceed southbound. The vehicle subsequently executed multiple right turns in front of the police vehicle, before turning left onto Hampden Street, Ascot. Police activated lights and sirens, resulting in the appellant pulling over. Office McBride activated his body worn camera upon approaching the Kia motor vehicle and identified himself to the appellant, explaining that he had been pulled over for a licence check.
The body worn camera video footage confirms the following. After being asked for his licence, the appellant stated, “I’ve got to be unlicenced.” The police officer asked, “You don’t have a licence?” The appellant replied, “Yes… suspended.” After being asked why his licence has been suspended, the appellant stated, “Points accumulation. Just from Department of Transport.” During the subsequent conversation, the defendant appellant referred on a couple of occasions to his “unlicenced driving”.
The appellant was issued a notice to appear for unlicenced driving.
The appellant’s cross-examination of Officer McBride focussed on his failure to provide any warnings during the course of his conversation with the defendant. The appellant also questioned the officer’s reliance on verbal admissions, suggesting that people sometimes lie. In re-examination, Officer McBride stated that he was not required to give rights and cautions for traffic matters.
The appellant objected to the prosecution tendering a section 123C of TORUM certificate and, ultimately, the trial was adjourned so that the author of that certificate could give evidence upon a resumption of the trial.
That resumption of the trial occurred on 24 February 2025, when the prosecution called Renee Troy, a delegate of the Chief Executive of the Department of Transport and Main Roads, to give evidence. Ms Troy confirmed that she was the author of the certificate that was admitted as exhibit 2 in the proceedings. The document, “Department of Transport and Main Roads Certificate of Evidence – Driver Unlicensed via Suspension”, identified the appellant as the customer. It referred to section 123C, schedule 1, and section 124 of TORUM. It identified Ms Troy as the delegate of the Chief Executive, pursuant to section 37 of the Transport Planning and Coordination Act 1994 and section 282 of the Public Sector Act 2022, to sign and issue certificates under section 123C, schedule 1 and section 124 of TORUM.
The certificate certified as follows:
1. On 29 November 2023, there was not in force a driver licence issued under the Transport Operations (Road Use Management) Act 1995 and Transport Operations (Road Use Management – Driver Licensing) Regulation 2021.
2. As at 29 November 2023, the driver licence was suspended under the Transport Operations (Road Use Management – Driver Licencing) Regulation 2021 as a result of the accumulation of demerit points during a good driving behaviour period. The suspension was for a period of eight months, effective on and from 11 July 2023 and expiring on 10 March 2024.
Ms Troy also identified a document which was admitted as exhibit 3 as confirmation of correspondence sent to the appellant in relation to demerit point sanctions generated through the Transport Integrated Customer Access System (TICA). The witness gave evidence that she operated that system so as to generate the document which she said showed that, on 19 June 2023, an accumulation of demerit points letter was issued, and then on 26 July 2023, a good driving behaviour notice to choose auto letter was sent with nothing received and no mail returned.
Ms Troy was cross-examined by the appellant on a number of subjects. The one which was the subject of contentions by the appellant on appeal were with respect to an apparent discrepancy between the commencement date of the appellant’s licence suspension as certified in exhibit 2 and what might expect to be the commencement date of the suspension by reason of the dates of the correspondence recorded in exhibit 3. Some of that cross-examination proceeded by reference to the terms of a section 95 Evidence Act certificate of the witness which, ultimately, was not admitted into evidence.
Because of the contentions basing the appellant’s appeal to this court, it is necessary to refer to some of that evidence as follows.
The witness confirmed that in her section 95 Evidence Act certificate, she stated as follows:
5(a), on 19th of June 2023, a written accumulation of demerit points during a good driving behaviour notice was given to Andrew John Millar, date of birth 1st of December, 1970, driver’s licence number 30626644. This notice was given by sending it by post to the last known address recorded by Department of Transport and Main Roads, 79 Stanley Road, Camp Hill, 4152.
5(c) on 26th of July 2023, a written notice of confirmation of driver’s licence suspension was given to Andrew John Millar, date of birth 1st of December, 1970, driver’s licence number 30626644. This notice was given by sending it by post to the last known residential address recorded by Department of Transport.
The witness explained that the letter dated 19 June 2023 was sent to the appellant because of the accumulation of demerit points during a good driving behaviour period, and that the recipient has a choice of accepting a default dated suspension or choosing to start it earlier. The witness explained that the letter of 26 July 2023 would have issued in the absence of a response to the first letter, confirming the default date of suspension, which she said would have been 26 July 2023.
Ms Troy was then cross-examined by the appellant about the apparent discrepancy between her evidence that the start date of the suspension would have been 26 July 2023 and her certification in exhibit 2 of the start date of the suspension being 11 July 2023. She explained the discrepancy as follows:
So in August 2024, which is dated on the certificate, when the certificates were generated, it was noted that there needed to be a data fix. That is why ---
DEFENDANT: A data what, sorry?---A data fix.
Data fix?---That is why the suspension date actually has a different date, because there were multiple infringements under your record.
The appellant then made submissions to the presiding Magistrate as to having had no previous notice of such matter and requiring an adjournment of the trial. The presiding Magistrate deferred consideration of the appellant’s application for an adjournment until the conclusion of the witness’ evidence.
The appellant continued to cross-examine Ms Troy as to her lack of prior mention in any of her statements of the “data fix”, to which the witness stated:
No, because I didn’t have knowledge of it … because the data fix was requested by another person … within the department.
The appellant demanded that the presiding Magistrate order the witness to state who that other person was, and the Magistrate declined to do so. Following further submissions by the appellant, the presiding Magistrate asked the witness some further questions, as did the appellant:
HER HONOUR: How did you become aware of this concept of data fixing?---When looking through the email trails in regards to the court certificates.
DEFENDANT: So there’s an email trail. What date did you become aware of the data fixing?--Uh, was ---
Well, the month at least?---It was this month.
Sorry?---This month.
HER HONOUR: No. But hold on a minute. I think following on from the question I asked, which is, “When did you become aware?”, and you said, “This month”, how did you become aware?---Uh, when printing these.
There was further questioning of the witness by the appellant as to the dates of the exhibits 2 and 3, and her claimed lack of knowledge of the “data fix” prior to February 2025. In re-examination, the witness gave the following evidence:
MR THEED: What was the nature of that data fix?---Um, a correction on the dates for the good – uh, for the suspension, driver’s licence suspension.
And do you know what dates it was corrected from and to?---From the 26th of July to the 11th of July.
And did the period of disqualification change?---No. It stayed the same.
So it was initially – I just want to confirm that I’m not missing this up. It was originally an eight-month disqualification commencing on the 26th of July?---Yes, I believe so.
And then there was a data fix that made it so that it commenced on the 11th of July?---Yes. I believe ---
And both – when I – sorry. I should clarify, the 26th of July 2023 and the 11th of July 2023?---Yes.
And they were both for the eight month period that’s outlined in exhibit 2, the certificate that you provided?---I believe so, yes.
After the witness was excused, the appellant again complained that he had been caught by surprise by the evidence of the witness, but it does not appear that he persisted in his application for an adjournment of the hearing. He indicated that he would not be giving evidence, and after a short adjournment, the appellant made submissions by way of closing address.
The appellant referred to the lack of any warning by Officer McBride prior to his recorded admissions. He reminded the presiding Magistrate that Officer McBride acknowledged that people can say things to him that are not necessarily true. He submitted that evidence of sending something in the mail was not evidence that someone received it.
With respect to the main topic addressed in the appeal, the appellant submitted to the presiding Magistrates as follows:
We then come to the main point, your Honour, is that this cross-examination, which when we dealt with her, the document I had in front of her – not exhibit 2 – she gave the evidence that the suspension was in place from the document dated the 26th of July, and it started from that day. And she particularised the process that didn’t get taken up on the 19th of June and therefore the 26th of July came into play. And she swore that under oath.
Yeah. So I then took her to exhibit 2 and showed her – put on her the contradiction of paragraph 2, of exhibit 2, which says that the driving behaviour suspension started from the 11th of July 2023, which is something that can’t have happened, which she swore to, under oath, in that certificate. I’m going to use the term swearing under oath because I think that’s the expectation of the court. The expectation is she doesn’t get free range to be anything under oath.
So when I put to her the contradiction of, if that was the case, the evidence that she gave about the 26th of July had to be false because they both can’t be correct, she turned to something out of the blue. Made it – before we know she made up the term of – in a split second – of data fixing. And at the lowest, your Honour, it’s a criminal offence. She’s had to admit that there’s been alterations to my record. And when I asked if she did it, no, she referred to an unknown person. Now, for the record, your court, you made a decision not to have her name, as this other person she referred to, so that rabbit hole couldn’t be explored.
So in any event, we then went down to the path which you actually lead as to when – you asked her the question directly, when did she learn of this data fixing that led to the new document, the document, exhibit 2, which had the new dates of 11th of July, which those dates came about as a result of data fixing because she said multiple infringements, so this has led to this document, which predates the 26th of July 2023. And her answer to you, under oath, your Honour, is, “I only learned about data fixing this month, February 2025.”
If you hadn’t looked closely when I was tackling these two documents, which I knew was going to come up, I didn’t say anything, the documents were produced on the 2nd day of August and the 5th day of August, last year, so roughly almost six - six - five and a-half months ago. So she and Queensland Police Prosecution, we’re to believe have thought “We’re going to hide this because he just possibly won’t do a cross-examination that corners me and uncovers it and we’ll get away with it.” But it did. It became uncovered, your Honour.
The decision of the Magistrate
The presiding Magistrate correctly identified the terms of the charge and the relevant offence provisions and the onus and standard of proof. The presiding Magistrate stated that her ability to observe the demeanour of the witnesses, Plain Clothes Constable McBride and Ms Troy, assisted her consideration of their credibility. The presiding Magistrate detailed the evidence of the witnesses.
In discussing the evidence of Ms Troy, the presiding Magistrate stated as follows:
She was then asked about the date of the suspension. She said that it – the licence was suspended for eight months expiring 10th of March 2024. There was then a reference to a notice sent in August 2024. The evidence was irrelevant as it didn’t refer to the notice relevant to the suspension which predated the offence date being 29th of November 2023.
In re-examination, Ms Troy confirmed that the original notice was suspended from 26th of July ’23. Then she said a data fix occurred, and I should say, she did refer to the data fix as part of her cross-examination, and suspension date was changed to 11th of July 2023. The defendant did not put to Ms Troy that his licence was in force or not in force on the 29th of November 2023 being the offence date.
The presiding Magistrate then correctly identified the elements of the offence and the particulars of the offence. The presiding Magistrate drew no adverse inference from the appellant’s decision not to give evidence. The presiding Magistrate concluded that there was no legislative requirement for Constable McBride to provide any caution to the defendant before questioning him about his driver’s licence. The presiding Magistrate held that the body worn camera footage containing admissions was admissible. The presiding Magistrate noted that it was not in contention that the appellant was the driver of the particularised motor vehicle on the particularised road. The presiding Magistrate dealt with the defendant’s arguments as follows:
In his submissions, Mr Millar said that the case should be dismissed to two reasons; first because he hadn’t been given his rights and cautions and I’ve rejected that argument, And second that the certificate by the Department of Transport is inherently unreliable. So this relates to the issue of whether or not the defendant was demerit point suspended on the 29th of November 2023. The defendant challenged reliance by the prosecution to the two certificates M2 and 3, tendered under section 124 of the Transport Operations (Road Use Management) Act.
Mr Millar submitted that the certificate should have been tendered by the police officer McBride. But I reject that because McBride wasn’t the author of the document and could not have tendered it. Section 124 enables the document to be tendered without the author of the document being called. The defendant contended that the certificate relating to his license should have been tendered through a witness from the Department of Transport and the trial was adjourned and the prosecution called Ms Troy to give evidence and tender the documents and exhibits M2 and 3 where tendered, identified by her.
Ms Troy signed the certificate of evidence as a delegate of the Chief Executive. Section 37 of the Transport Planning and Coordination Act 1994 refers to powers of delegates to exercise a function from the Chief Executive. However, I note with respect to that argument that the document could have been tendered into evidence without Ms Troy being called, pursuant to section 95(3) of the Evidence Act 1997 Qld which provides that, “a certificate purporting to be signed by a responsible person for the process or device and stating any of the following matters is evidence of the matter for the purpose of subsection (2) (a) that the document or thing was produced wholly or partly by the process or device and; (b) that the document or thing was produced wholly or partly in a particular way by the process or device.”
I also note that Constable McBride gave evidence that the certificate was provided as part of the brief of evidence which was disclosed on the 29th of August 2024. Mr Millar challenged the evidence given by Ms Troy saying that she was a dishonest witness who perjured herself. I do not accept that assertion. She was interrupted by Mr Millar while giving her evidence. She didn’t retract or change her evidence with respect to the relevant evidence being the fact that the notice of disqualification was sent to Mr Millar and not returned and he wasn’t the holder of the license on the 29th of November 2023. And that’s confirmed by exhibit 2.
Subsection 121 of the Transport Operations (Road Use Management) Regulation apples to suspension for the allocation of demerit points. Section 121 subsection (3) provides that the day of suspension must be at least 21 days after the day of the notice. Section 121(4)(b) provides that a person may elect to have the cancellation commence on a day stated on the notice. The defendant didn’t respond to the notice, so it started on the day it was sent.
Mr Millar’s cross examination went to the issue of whether he knew or should have known that he was disqualified. The body worn camera footage from 29th November 2023 shows that he knew he was disqualified on the day he was stopped by police. He was frank and open in admitting this fact to Constable McBride on the day. The defendant did not put to either Constable McBride or Ms Troy that his license was not, in fact, suspended on the 29th of November 2023, the day he drove the vehicle on Hampden Road, and I infer from the body worn camera footage and from this admission that he knew that it was suspended on the 29th of November 2023.
But it’s important for me to say that actual knowledge isn’t an element of the offence. What’s required is notice and the notice I am satisfied that the notice was actually given, meaning it was sent to him at his last known address. Whether his suspension started on the 29th of June 2023 or the 26th of July 2023 is irrelevant to the status of his license on the date of the charge, meaning 29th of January [sic] 23. But as some of Ms Troy’s evidence touched on the process insofar as she referred to the fact that Mr Millar did not respond, I shall refer to the relevance of that here.
Section 264 requires the Chief Executive to give notice, and the drive can elect to accept the suspension or be of good behaviour for a year. As no election was made, Mr Millar’s license was suspended. Whether a person from the Department altered the data or records to change the start date of the suspension is irrelevant to the issue of whether Mr Millar was licensed to drive on the 29th of November 2023, as that relates to recent events predating – postdating that offence and predating the evidence today, and I find that he was not licensed on the 29th of November 2023 because of the allocation of demerit points.
I’m satisfied beyond reasonable doubt that on the 29th of November 2023, the defendant drove a vehicle on the road, and at the time, he was not the holder of a driver’s licence authorising him to drive the vehicle on the road because of the allocation of demerit points, and therefore he did not hold a licence.
Notice of Appeal
The appellant has appealed against his conviction pursuant to s 222 of the Justices Act1886. The grounds specified in his notice of appeal filed on 24 February 2025 are:
(1) The court erred in law by taking into account irrelevant evidence; and
(2) The court erred by making findings of fact not available upon the evidence at trial.
Nature of the Appeal to the District Court
The nature of the appeal to the District Court was recently stated by the Court of Appeal to be as follows in Millar v Queensland Police Service [2025] QCA 14 at paragraph [3]:
Section 223 of the JA provides that an appeal under s 222 is by way of rehearing on the evidence given in the proceeding in the Magistrates Court. …. The nature of the review task undertaken by the District Court judge on such an appeal is settled. See McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. What is involved in the District Court judge conducting a real review of the evidence and making up the judge’s own mind about the case was set out by Sofronoff P (with whom Gotterson and Morrison JJA agreed) in Forrest v Commissioner of Police [2017] QCA 132 at p 5:
“Consequently, the learned District Court judge had to consider each of the grounds of appeal raised by the applicant and, having regard to the evidence led in the Magistrates Court and paying due regard to the advantage that the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact.”
Legislation
Relevant provisions of TORUM include the following:
78 Driving of motor vehicle without a driver licence prohibited
(1)A person must not drive a motor vehicle on a road unless the person holds a driver licence authorising the person to drive the vehicle on the road.
…
(3) If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstance—
…
(b) if the person committed the offence while the person was disqualified from holding or obtaining a driver licence because of the allocation of demerit points—6 months;
Note— See section 127(4)(b) for the effect of a suspension because of the allocation of demerit points under the driver licensing regulation.
127 Effect of disqualification
(4) Suspension under this Act of any licence—
(c) shall, whilst such licence is so suspended, disqualify the person who held that licence from holding or obtaining a licence of the same kind, class, or description…
123 Records
(1)A responsible person who issues an instrument under this Act must keep a record of the particulars of the instrument at—
(a) if the instrument is issued by the chief executive—an office of the department decided by the chief executive; or
(b) otherwise—an office of the Queensland Police Service decided by the commissioner.
124 Facilitation of proof
(1)In any proceeding under or for the purpose of this Act, the following apply—
…
(b) a document purporting to be signed by the chief executive, the commissioner or a superintendent and stating that at any stated time there was or was not in force a licence under this Act as described therein issued to a stated person, or in respect of a stated vehicle, or for a stated purpose (or a document purporting to be signed by the officer ordinarily having the custody of the particulars of Queensland driver licences and stating that at any stated time there was or was not in force a Queensland driver licence under this Act issued to a stated person), or, in the case of either document as aforesaid, stating that any such licence was or was not issued subject to terms, conditions, or restrictions, or was or was not issued subject to the terms, conditions, and restrictions set out in that document shall, upon its production in evidence, be evidence of the matter or matters in that document, and in the absence of evidence in rebuttal thereof shall be conclusive evidence of such matter or matters;
…
(i) the allegation or averment in any complaint that—
(i)any person is or is not or was or was not at any time or date mentioned in the complaint—
(A) the owner of any vehicle, tram, train, vessel, or animal; or
(B) the holder of a licence or any particular class or description of licence; or
…
(D) the holder of a driver licence authorising the holder to drive a motor vehicle on the road therein specified; or
…
(iii) any place or thing is or was a road or a part of a road or an off-street regulated parking area or a part of such an area; …
shall be evidence of the matter or matters so averred or alleged, and in the absence of evidence in rebuttal thereof shall be conclusive evidence of such matter or matters.
Relevant provisions of Transport Operations (Road Use Management – Driver Licensing) Regulation 2021 include the following:
263 Application of division
(1) This division applies in relation to a person who holds an open licence if—
(a) 12 or more demerit points are recorded on the person’s traffic history; and
(b) the demerit points were allocated in a continuous 3-year period; and
(c) the person held a Queensland driver licence for any part of the period.
264 Chief executive must give notice to choose
(1) The chief executive must give the person a written notice (a notice to choose) requiring the person to, within a stated period of at least 21 days after the day the notice is given (the choice period), choose between
(a) having the person’s Queensland driver licence suspended for the required suspension period; or
(b) agreeing to be of good behaviour while driving for a year.
…
266 Effect of choosing good behaviour if 2 or more demerit points allocated
during good behaviour year
(1) This section applies in relation to a person who is given a notice to choose if—
(a) within the choice period, the person notifies the chief executive in writing that the person agrees to be of good behaviour while driving for a year under section 264(1)(b); and
(b) 2 or more demerit points are recorded on the person’s traffic history for offences committed during the person’s good behaviour year.
(2) The chief executive must give the person a written notice stating—
(a) the day the notice is given; and
(b) the person’s Queensland driver licence is suspended for a period that is double the required suspension period; and
(c) the suspension starts on—
(i) the day stated in the notice; or
(ii) if the person notifies the chief executive in writing that the person wants the suspension to start on an earlier day—the earlier day; and
(d) if the person’s Queensland driver licence is an open licence or a provisional licence—the person may be eligible to apply for a special hardship order under chapter 10 in relation to the suspension.
(3) For subsection (2)(c)(i), the stated day must be at least 21 days after the day the notice is given.
(4) If the person notifies the chief executive under subsection (2)(c)(ii) that the person wants the suspension to start on an earlier day, the earlier day must not be before the day the person notifies the chief executive.
(5) If a notice is given to the person under subsection (2), the person’s Queensland driver licence is suspended for a period that—
(a) starts on—
(i) the day stated in the notice; or
(ii) if the person notifies the chief executive of an earlier day under subsection (2)(c)(ii)—the earlier day; and
(b) is double the required suspension period.
Relevant provisions of Transport Planning and Coordination Act1994 include the following:
36H Service of document by post
(1) This section applies if a transport Act requires or permits a document to be served on a person.
(2) The Acts Interpretation Act 1954, section 39 applies as if the reference to a person’s address included a reference to the postal address that the person last notified to the department.
(3) In this section—
person’s address means the address of the place of residence or business of the person, or the head office, a registered office or a principal office of the body corporate.
37 Delegation by the Minister or the chief executive
(1) The Minister or the chief executive (the delegator) may delegate to a person a function or power of the delegator under this or another Act.
Relevant provisions of Acts Interpretation Act1954 include the following:
39 Service of documents
(1) If an Act requires or permits a document to be served on a person, the document may be served—
(a) on an individual—
(ii) by leaving it at, or by sending it by post, telex, facsimile or similar facility to, the address of the place of residence or business of the person last known to the person serving the document; or
39A Meaning of service by post etc.
(1) If an Act requires or permits a document to be served by post, service—
(a) may be effected by properly addressing, prepaying and posting the document as a letter; and
(b) is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved.
(2) If an Act requires or permits a document to be served by a particular postal method, the requirement or permission is taken to be satisfied if the document is posted by that method or, if that method is not available, by the equivalent, or nearest equivalent, method provided for the time being by Australia Post.
(3) Subsections (1) and (2) apply whether the expression ‘deliver’, ‘give’, ‘notify’, ‘send’ or ‘serve’ or another expression is used.
Consideration of Appellant’s contentions
Although not the subject of a ground of appeal, the appellant’s written and oral submissions did raise an issue regarding the terms of his arraignment on the charge on 24 January 2024. The appellant submitted that there was no identification by the Magistrate prior to the arraignment or during the arraignment of the provision of TORUM which created the offence, and that, in those circumstances, he was not tried pursuant to the provisions of TORUM. Such a submission does not have merit. The substance of the complaint was stated to the appellant as required by section 145(1) of the Justices Act1886, such that the appellant could have had no misunderstanding of the substance of the charge that he was to meet, and to which he pleaded not guilty.
The appellant’s arguments were mainly addressed to the evidence of Ms Troy and the issue of “data fixing”. The appellant contends that in circumstances where:
(a) he had no prior notice of the “data fixing”; and
(b) he was denied an adjournment of the hearing so that either:
(i) further disclosure could be made by the prosecution of the circumstances of the “data fixing”; and/or
(ii) the defendant could have an opportunity to further explore and consider the issue of “data fixing” so as to conduct his defence accordingly;
he was denied procedural fairness and a fair trial such that the appeal should be allowed and the conviction set aside.
I do not accept such submissions. Whilst I consider the matter of “data fixing” is most likely, as contended by the respondent, a routine administrative correction rather than the sinister malfeasance contended for by the appellant, ultimately nothing turns on such a characterisation. That is because the matter of “data fixing” is ultimately irrelevant to the merits of the prosecution case at first instance and the merits of the appeal. That the period of suspension may have been adjusted to commence some 15 days earlier than might have originally been calculated on the basis of the TICA correspondence, did not alter the fact that, at the date of the alleged offence, the defendant was not the holder of a driver’s licence. Even if, as contended by the appellant, there was some impropriety involved in the “data fixing”, that did not alter that fact.
Exhibit 2 constituted proof of the matters stated in the certificate, pursuant to section 123C subsection (1) of TORUM. That is evidence that the appellant was not the holder of a driver’s licence on 29 November 2023 and that, on that date, his driver’s licence was suspended as a result of the accumulation of demerit points during a good driving behaviour period.
Pursuant to section 124(1)(b), the statement in the document that there was not in force a licence issued to the appellant was evidence of that matter “and in the absence of evidence in rebuttal thereof… conclusive evidence of such matter.” Further, by reason of the provisions of section 124(1)(i) of TORUM, the allegations and averments in the complaint to such effect were themselves evidence of such matters, and in the absence of evidence in rebuttal thereof, conclusive evidence of such matters.
It was not an element of the charge that the suspension commenced on a particular date. In the circumstances of this case, the date that the suspension commenced and ceased was ultimately irrelevant given the incontrovertible proof that, at the date of the alleged offence, the appellant was unlicensed by reason of suspension of his licence by accumulation of demerit points.
In those circumstances, the appellant cannot make out any denial of procedural fairness by reason of non-disclosure by the prosecution of the circumstances of the “data fixing” or the presiding Magistrate’s refusal to permit further cross-examination of Ms Troy on such topic, for example, as to who else might have performed the “data fixing” or any application for an adjournment of the trial for such reason. The trial was not unfair by reason of anything related to the “data fixing” the subject of complaint by the appellant.
The appellant has failed to demonstrate any legal, factual or discretionary error on the part of the presiding Magistrate so as to justify appellate intervention. Upon my own independent review of the evidence, I also am satisfied beyond reasonable doubt of the guilt of the appellant of the charge.
Orders
The appeal against conviction is dismissed. The conviction of the appellant of the charge is confirmed.
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