Paraone v. Fisher

[2008] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

Paraone v Fisher [2008] QDC 132

PARTIES:

HENARE KAIPO PARAONE

(Appellant)

V

TIMOTHY ALLAN FISHER

(Respondent)

FILE NO/S:

BD138/06

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

27 June, 2008

DELIVERED AT:

Beenleigh

HEARING DATE:

6 May 2008

JUDGE:

Dearden DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

Restricted work licence - appeal - ‘to and from work’- ‘directly connected’ with earning one’s livelihood -“substantial connection test”

LEGISLATION:

Transport Operations (Road Use Management) Act (Qld) 1995, ss 87(4)(a), 87(4), 87(10),  124(fa) and (g) 

CASES:

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450

Monley v Dunn (1989) 10 Qld Lawyer Reps 106

R v Ward, Marles and Graham [1989] 1 Qd R 194

COUNSEL:

CFC Wilson for the appellant

P McCarthy for the respondent

SOLICITORS:

Bell Miller Solicitors for the appellant

DPP Solicitors for the respondent

Introduction

1. The appellant was convicted before the learned magistrate at Beenleigh in respect of a charge of driving a motor car other than in accordance with the restrictions on a restricted licence, on 14 August 2006 at Logan Central.  The charge proceeded to trial on 8 December 2006 and the decision was delivered on 19 December 2006.  The defendant was found guilty, convicted and fined $360 in default six days imprisonment and disqualified from holding or obtaining a driver’s licence for a period of three months.

Appeal Grounds

1. The grounds of the appeal are as follows:

1.          The learned magistrate erred in law in her interpretation and/or application of s 87(4) and s 87(10) of the Transport Operations (Road Use Management) Act 1995 (“TO(RUM)A”).

2.          The learned magistrate acted against the evidence, the weight of the evidence and/or unreasonably in convicting the defendant of the offence.

Facts

1. Constable Timothy Fisher gave evidence that on 14 August, 2006, while he and Constable Pitman were conducting mobile patrols at about 5.30 pm, Constable Fisher noticed a blue Holden Commodore sedan, stationary at the drive through of the bottle shop of the Logan City Tavern.  The appellant was the sole occupant of the vehicle. When asked for his driver’s licence, the appellant advised that he had been granted a work permit to drive to and from work.  When the appellant was asked whether he was aware that his provisional licence had been granted to drive directly to and from work, the appellant replied that he did not know that he was not allowed to stop.  Constable Fisher observed a six‑pack of XXXX Gold stubbies on the appellant’s passenger seat during the course of the conversation with the appellant.[1]  Constable Steven Pitman gave evidence which relevantly corroborated Constable Fisher’s evidence.[2]  The appellant neither gave nor called evidence.

   [1]Hearing transcript pp 3‑4.

   [2]Hearing transcript pp 11-12.

1. Exhibit 1 on the trial was a Department of Transport certificate issued pursuant to TO(RUM)A s 124(fa) and (g). It relevantly certified that the appellant was issued a restricted provisional driver’s licence on 5 July 2006 for a period of two months (consequently operative as at 14 August, 2006). The terms of that restricted licence were that “ … a restricted licence be issued to the defendant during the period of his disqualification authorising him to drive a Class C vehicles [sic] between the hours of 5.30 am and 9.30 pm Monday to Saturday of each week for the purposes [sic] directly connected with his means of earning his livelihood.”

Magistrate’s findings

1. The learned magistrate held[3] that the words “directly connected with his means of earning his livelihood” did not permit the appellant to drive through the bottle shop or otherwise drive his vehicle in order to purchase liquor, even if the journey was from the appellant’s workplace to his home and the bottle shop was on that route. In particular, the learned magistrate found that the words “directly connected with his means of earning his livelihood” had a different meaning from the use of the same words in TO(RUM)A s 87(4)(a) and declined to follow the decision of this court in Monley v Dunn[4].

   [3]See Appellant’s Outline of Submissions, p3, and Decision transcript pp 6-7

   [4](1989) 10 Qld Lawyer Reps 106 - see Decision transcript pp 7-8

Appellant’s submissions

1. Mr Wilson, who appeared on behalf of the appellant on both the trial and the appeal, submitted that the appellant merely deviated some metres on his route to stop to make a purchase, but that deviation was “minor and incidental” and did not change the nature of his driving from his workplace to his home which, in the appellant’s submission, could still be characterised as a journey from work to home.  It was submitted further on behalf of the appellant that “a licence is not needed to stop a vehicle, it is needed to drive one” and stopping “for any brief purpose” would not affect the character of the journey which was still a journey for the purpose of travelling from work to home.[5]  Mr Wilson argued that it was a fundamental rule of construction of statutes that where the same words are used in an Act, then the same meaning should be given to those words as far as possible.[6] Consequently it was submitted on behalf of the appellant that the learned magistrate was bound by the decision in Monley v Dunn[7] and ought to have applied the test in that case to the provisions of TO(RUM)A s 87(10), given that s 87(10) uses the same words as s 87(4) (which was the legislative provision, the subject of the decision in Monley v Dunn).

   [5]Appellant’s Outline of Submissions, pp 3-4.

   [6]Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450.

   [7](1989) 10 Qld Lawyer Reports 106.

1. Mr Wilson advanced a further submission orally on the hearing of the appeal, namely that the wording of the charge against his client alleged that the appellant “did drive a motor vehicle namely a motor car on a road namely Wembley Road, Logan Central, otherwise than in accordance with the restrictions to which the licence was issued” and Mr Wilson submitted that the point at which his client’s vehicle left Wembley Road and was on the driveway was the only point at which it was arguable that his client was not complying with the terms of his licence, but at that point the non-compliance (if it could be characterised as that) was occurring not on Wembley Road but on the driveway of the hotel.

1. In my view this was a novel argument, with a fundamental logical flaw that, in order to enter the driveway of the hotel, the appellant’s vehicle was, for a short period, partly on both Wembley Road and the hotel driveway, at which point the appellant’s purpose was then not to continue the drive home, but to drive through the bottle shop in order to purchase alcohol. There is no substance to this submission.

1. In respect of the appellant’s submission that a licence was not needed to “stop a vehicle” that also struck me as a novel but unpersuasive argument. There was no suggestion on the evidence that the appellant at any time relinquished his position as driver of the vehicle, and any driving will almost inevitably involve periods of movement, interspersed with periods in which the vehicle has stopped, whether momentarily or otherwise, and whether on a roadway or otherwise. During any such process, the appellant clearly remained the driver of the vehicle and subject to the relevant restrictions on his licence. There is no substance to this submission.

1. The decision in Monley v Dunn[8] was an issue about the eligibility of the appellant for a provisional licence pursuant to Traffic Act s 20A (now TO(RUM)A s 87). In my view, that is a completely different issue to the issue as to whether a person has breached the provisions of a restricted licence pursuant to TO(RUM)A s 87(10), and the construction of statutory language used in respect of the exclusionary factors for obtaining a restricted licence is (respectfully) of no assistance in construing a provision which makes it an offence to breach a restricted licence.

   [8](1989) 10 Qld Lawyer Reps 106.

1. It was submitted by Mr McCarthy, who appeared on behalf of the respondent, that the critical issue on appeal was to identify whether the driving into the bottle shop of the Logan Central Tavern was a “purpose directly with the appellant’s means of earning his livelihood”.  In other words, it was the characterisation of the driving which was essential to the determination of the purpose for which the applicant was driving at the relevant time. That characterisation, Mr McCarthy submitted, would be determined from the surrounding circumstances including the location at which the applicant had stopped (a bottle shop) and the completed intention of purchasing alcohol.  In Mr McCarthy’s submission, the character of the driving at that stage changed from transport from the applicant’s workplace to home, into a purely social function ie the purchase of alcohol, and at that point Mr McCarthy submits the issue then becomes whether the purpose of the driving is directly connected to the means of the applicant earning his livelihood. 

1. Mr McCarthy submits that the decision in R v Ward, Marles and Graham[9] identifies the relevant test as being a “substantial connection test” as opposed to a connection which was “merely accidental or incidental”.  In Mr McCarthy’s submission, driving for the purpose of purchasing liquor could not be said to have a “substantial connection” with the appellant’s “means of earning his livelihood”.  That, Mr McCarthy submits is in clear contradistinction to a situation of the appellant stopping his car to obtain petrol or attending at a service station for the purpose of repairs, each of which would be purposes “substantially connected with the appellant’s means of earning his livelihood, given that such purposes were necessary to enable the car to continue to drive”.

   [9][1989] 1 Qd R 194.

Conclusion

1. In my view, it is clear that at the point at which the appellant turned his vehicle off Wembley Road and commenced to enter the driveway of Logan Central Tavern with an intention, clearly fulfilled, to purchase alcohol, his purpose was no longer a purpose “directly connected with his means of earning his livelihood,” but was an entirely private purpose of purchasing alcohol, albeit on the way home from the appellant’s workplace. The learned magistrate was clearly entitled, as she did, to find the appellant guilty of breaching the provisions of TO(RUM)A s 87(10).

Order

1. The appeal is dismissed. 

Costs

1. I will hear the parties as to costs.