Moman v Middleton - [2013] QCA 53

SUPREME COURT OF QUEENSLAND

CITATION:

Moman v Middleton [2013] QCA 53

PARTIES:

MOMAN, John William
(applicant)
v
MIDDLETON, Alan John
(respondent)

FILE NO/S:

CA No 275 of 2012
DC No 149 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

22 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Martin J
Separate reasons for judgment of each member of the Court, Fraser JA and Martin J concurring as to the orders made, Margaret McMurdo P dissenting in part

ORDERS:

1. Application for leave to appeal granted.

2. Appeal dismissed.

CATCHWORDS:

TRAFFIC LAW – OFFENCES – ALCOHOL AND DRUG RELATED OFFENCES – QUEENSLAND – OTHER OFFENCES – where the applicant was intercepted driving a motorbike with a blood alcohol concentration of 0.049 per cent – where the applicant held an open licence for a car, but no licence for a motorbike – where the applicant was convicted under s 72(2A)(a) of the Transport Operations (Road Use Management) Act 1995 (‘the Act’) – where the applicant contended that s 79(2A) of the Act did not apply because the applicant’s C class licence was a “driver licence” within the meaning of s 79(2A) of the Act – whether the applicant’s C class licence meant that he could not be convicted under s 79(2A)(a) of the Act

Transport Operations (Road Use Management) Act 1995 (Qld), s 78, s 79(2A)
Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld), s 22, s 23

Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 293 ALR 412; [2012] HCA 56, cited
Chew v The Queen (1992) 173 CLR 626; [1992] HCA 18, cited
Ex parte Fitzgerald; Re Gordon (1945) SR (NSW) 182, cited
Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98; [2012] HCA 55, cited
Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, cited
Hall v Jones (1942) 42 SR (NSW) 203, cited
Krakouer v The Queen (1988) 194 CLR 202; [1998] HCA 43, cited
The King v Adams (1935) 53 CLR 563; [1935] HCA 62, cited
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58, cited

COUNSEL:

J A Greggory for the applicant
B G Campbell for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Fraser JA’s reasons save that I do not consider this application raises an important question of statutory construction. In my view, the construction of s 79(2A) Transport Operations (Road Use Management) Act 1995 (Qld) adopted by the magistrate, the District Court judge on appeal and Fraser JA is plainly correct when the provision is read in context and in light of the purpose of the…

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 Moman v Middleton

Details

AGLC: Moman v Middleton [2013] QCA 53
Case: [2013] QCA 53
Decision Date: 22 March 2013

CaseChat Overview and Summary

Moman v Middleton was a matter heard by the Queensland Court of Appeal. The applicant was intercepted while driving a motorbike with a blood alcohol concentration of 0.049 per cent. The applicant held an open licence for a car but did not hold a licence for a motorbike. The applicant was convicted under section 72(2A)(a) of the Transport Operations (Road Use Management) Act 1995. The applicant contended that section 79(2A) of the Act did not apply because his C class licence was a “driver licence” within the meaning of section 79(2A) of the Act.

The court was required to decide whether the applicant’s C class licence meant that he could not be convicted under section 79(2A)(a) of the Act. The court considered the meaning of the term “driver licence” in section 79(2A) of the Act. The court found that the term “driver licence” in section 79(2A) of the Act referred to a licence to drive a vehicle of the class in which the person was driving at the time of the offence. The court held that the applicant’s C class licence did not authorise him to drive a motorbike, and therefore, he could be convicted under section 79(2A)(a) of the Act.

The court granted the application for leave to appeal, but dismissed the appeal. The court held that the applicant’s C class licence did not mean that he could not be convicted under section 79(2A)(a) of the Act. The court held that the term “driver licence” in section 79(2A) of the Act referred to a licence to drive a vehicle of the class in which the person was driving at the time of the offence. The court held that the applicant’s C class licence did not authorise him to drive a motorbike, and therefore, he could be convicted under section 79(2A)(a) of the Act. The court dismissed the appeal, and the conviction was upheld.

Orders

Orders of the court

1. Application for leave to appeal granted.

2. Appeal dismissed.

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:	Moman v Middleton [2013] QCA 53
PARTIES:	MOMAN, John William (applicant) v MIDDLETON, Alan John (respondent)
FILE NO/S:	CA No 275 of 2012 DC No 149 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	22 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Martin J Separate reasons for judgment of each member of the Court, Fraser JA and Martin J concurring as to the orders made, Margaret McMurdo P dissenting in part
ORDERS:	1. Application for leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	TRAFFIC LAW – OFFENCES – ALCOHOL AND DRUG RELATED OFFENCES – QUEENSLAND – OTHER OFFENCES – where the applicant was intercepted driving a motorbike with a blood alcohol concentration of 0.049 per cent – where the applicant held an open licence for a car, but no licence for a motorbike – where the applicant was convicted under s 72(2A)(a) of the Transport Operations (Road Use Management) Act 1995 (‘the Act’) – where the applicant contended that s 79(2A) of the Act did not apply because the applicant’s C class licence was a “driver licence” within the meaning of s 79(2A) of the Act – whether the applicant’s C class licence meant that he could not be convicted under s 79(2A)(a) of the Act Transport Operations (Road Use Management) Act 1995 (Qld), s 78, s 79(2A) Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld), s 22, s 23 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 293 ALR 412; [2012] HCA 56, cited Chew v The Queen (1992) 173 CLR 626; [1992] HCA 18, cited Ex parte Fitzgerald; Re Gordon (1945) SR (NSW) 182, cited Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98; [2012] HCA 55, cited Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; [1983] HCA 44, cited Hall v Jones (1942) 42 SR (NSW) 203, cited Krakouer v The Queen (1988) 194 CLR 202; [1998] HCA 43, cited The King v Adams (1935) 53 CLR 563; [1935] HCA 62, cited Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58, cited
COUNSEL:	J A Greggory for the applicant B G Campbell for the respondent
SOLICITORS:	Purcell Taylor Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent