Police v Rogers
[2010] QMC 16
•31 March 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Rogers [2010] QMC 16
PARTIES:
POLICE
(prosecution)
v
ROBIN JOHN ROGERS
(defendant)
FILE NO/S:
MAG165558/09(0), MAG172202/09(8)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge – Summary hearing
ORIGINATING COURT:
Magistrates Court at Tully
DELIVERED ON:
31 March 2010
DELIVERED AT:
Tully
HEARING DATE:
24 March 2010
MAGISTRATE:
Brassington J
ORDER:
Dangerous operation of a motor vehicle – defendant convicted.
Failure to provide a specimen – defendant convicted.
Unlicenced driving – defendant acquitted.
CATCHWORDS:
TRAFFIC LAW – OFFENCES – dangerous operation of a motor vehicle – failure to provide a specimen – unlicenced driving – whether drifting into another lane repeatedly is dangerous driving - circumstantial evidence proving identity – whether notice of suspension containing a mistake is valid – whether mistaken belief about licence suspension is a mistake of fact or mistake of law
Criminal Code, s 328A
Transport Operations (Road Use Management) Act 1995, s 78, s 79B, s 79D, s 80(11)
R v Pettman [2007] QCA 233
COUNSEL:
T Lee (solicitor) for defendant
SOLICITORS:
Prosecution appeared on own behalf
Lee & Co for defendant
Mr. Rogers is charged with the following offences:
That on the 19th day of August 2009 at Mission Beach in the State of Queensland Robin John Rogers dangerously operated a vehicle namely a white motor vehicle in a place namely Tully Mission Beach Road and at the time of committing the offence the said Robin John Rogers was adversely affected by an intoxicating substance
That on the 19th day of August 2009 at Tully in the Magistrates Courts District of Innisfail in the State of Queensland he was guilty of an offence against s. 79(1) of the Transport Operations (Road Use Management) Act 1995 in that he upon a requisition duly made by Constable Harwood a police office under sub section 8C of section 80 of the said Act failed to provide as prescribed a specimen of his breath for analysis
That on the 28th day of August 2009 at Mission Beach in the Magistrates Courts District of Innisfail in the State of Queensland he drove a motor vehicle namely a motor car on a road namely Tully Mission Beach Road Mission Beach the said Defendant not being at that time the holder of a drivers licence authorising him to drive a vehicle on the road and further at the time of committing the offence the Qld drivers licence was suspended under s. 79B of the Transport Operations (Road Use Management) Act 1995
To these charges he pleaded not guilty. The matter was heard by me 24 March 2010. These are the reasons for my judgment in the trial.
All three charges have a common origin: the observations of Jeffrey Broad. On 19 August 2009 Mr. Broad was driving on the Mission-Beach Tully Road on his way to his Tully Office. He came up behind a white car also driving to Tully. While following this white car he saw it repeatedly slowly cross the white dividing lines and enter into the oncoming lane before suddenly veering back into the correct lane. The white car was travelling at 60 km/hour in a 80 km/hour zone.
After following the white car for about 10 minutes Mr. Broad decided to overtake it. As he overtook the white car again veered so far into the wrong lane that it pushed him off the road and onto the gravel. At this time he estimated the car was level with his own and only about a metre separated his vehicle from the other vehicle.
He managed to successfully overtake the vehicle and pass onto the correct side of the road. He continued to watch the vehicle in his rear view mirror and saw it veer twice more over the white line, go into the wrong lane and then return to the correct lane. Concerned as to the danger to other vehicles he decided to call the police. He also tried to record the number plate of the vehicle. He did this in dust on his dash but did not get the full registration number.
Before police arrived Mr. Broad saw the motor vehicle turn off the road and turn into a white unit complex. After speaking to police on the telephone he waited for their arrival.
Mr. Broad could not identify the driver as the only time he saw him was when he was overtaking him. His description was that he was an older person with gray hair.
The major issue in this trial is whether I am satisfied that the driver of the motor vehicle seen by Mr. Broad was the Defendant Robin Rogers. The prosecution case is that the circumstantial evidence called creates a compelling case that the Defendant was the driver of the white car and given the intoxicated condition he was found to be in by investigating police the prosecution have proved beyond reasonable doubt the aggravating circumstance that he was adversely affected by an intoxicating substance at the time and place that he dangerously operated a motor vehicle. Mr. Lee, for the Defendant, submits there is simply insufficient evidence to identify the driver and the Defendant should be acquitted. There are two related issues: firstly, did Mr. Rogers fail to provide a specimen of breath to police at Tully Police Station on 19 August 2009 and whether he drove a motor vehicle while unlicensed because of the application of a s 79B suspension. With respect to the former his case was that he tried his best to give a sample and, with respect to the latter, he was given no notice of the suspension or, if he did get notice, he was so paralytic that he did not realize its significance.
Before turning to the resolution of this issue I will address some legal and procedural matters as to how I should instruct myself in this matter.
PROCEDURAL ISSUES:
I have not obtained a transcript of the proceedings.
To explain my findings I will refer to some of the evidence. I have of course considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight. I have been assisted by seeing and hearing the witnesses and observing their demeanour in giving evidence. I however note that in assessing credit I have taken into account that police witnesses are well used to giving evidence and that a witness may hesitate for many reasons including nervousness and shyness rather then dishonesty.
During the trial the prosecution called four witnesses. The defendant gave evidence. By giving evidence he assumed no burden of proof. The defendant is entitled to the presumption of innocence. The prosecution bears the onus of proof and must prove the guilt of the defendant beyond a reasonable doubt. That is the prosecution bears the burden of proving each element of the charges and excluding any defences raised on the evidence beyond reasonable doubt. In this matter the only exception to this fundamental principle is in s 80(11A) of the Transport Operations (Road Use Management) Act 1995 relating to when a person is not guilty under s 80(11) - the offence of failing to provide a specimen. I will discuss that particular provision more conveniently when we reach the discussion of the s 80(11) charge.
Given the three charges it is convenient to consider each sequentially. Turning first to the dangerous operation charge.
DANGEROUS OPERATION OF A MOTOR VEHICLE
Section 328A of the Criminal Code provides:
A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.
Maximum penalty—200 penalty units or 3 years imprisonment.
(2) If the offender—
(a) at the time of committing the offence is adversely affected by an intoxicating substance; or
………
………
the person commits a crime.
Maximum penalty—400 penalty units or 5 years imprisonment.
Thus, the prosecution must prove that at the date and time in question the Defendant
Operated a motor vehicle.
In a place, namely the Tully Mission Beach Road
Dangerously.
The Defendant was adversely affected by an intoxicating substance
To prove dangerous operation an objective test is applied: the driving was dangerous and also that there was some fault of the Defendant that caused the danger (see R v Pettman [2007] QCA 233.) Given the description of driving observed by Mr. Broad I am satisfied to the requisite standard that driving was objectively dangerous – it involved the car repeatedly drifting over into the wrong lane with the driver repeatedly swerving back – when Mr. Broad tried to pass the driver he was almost driven off the road because the white car again crossed to the incorrect side of the road.
Given the Defendant’s state of intoxication when police saw him at 11. 44am coupled with the indicative breath alcohol level of 0.234, if he was proved to be the driver of car 30 – 45 minutes prior to this time, then even without a blood alcohol certificate he would be proved by the prosecution he adversely affected by an intoxicating substance (alcohol) at the time of driving. The question of adversely affected is one of fact. Given his state of intoxication at 11.44am, described in evidence variously as “paralytic”, “blind drunk” and “very drunk” and the evidence of his physical state including having to be helped up, the only conclusion available on the evidence is that his intoxicated state, adopting the direction approved in Anderson[1], would have materially influenced his driving.
[1] R v Anderson [1995]QCA 305 per Keane J at para. 70 onwards
The time of the Defendant’s alleged driving can be fixed as approximately 30-45 minutes before the documented arrival of the police at his residence at 11.44am. Mr Broad could not recall the exact time in evidence. He said it was mid-morning. However, his evidence was that he rang police while watching the white car. He further estimated he had been following the white car in total for about 10 minutes. Constable Harwood estimated it took police 20 minutes to respond to the call of Mr Broad.
The primary issue is then whether the Defendant can be proved beyond reasonable doubt to be the driver by the prosecution. The prosecution case rests on a circumstantial case. Before turning to that case I should record how I must instruct myself with respect to a circumstantial case.
For that purpose I adopt the direction from the District and Supreme Court Bench Book that:
Circumstantial evidence is evidence of circumstances which can be relied upon not as proving a fact directly but instead as pointing to its existence. It differs from direct evidence, which tends to prove a fact directly: typically, when the witness testifies about something which that witness personally saw, or heard. Both direct and circumstantial evidence are to be considered.[2]
To bring in a verdict of guilty based entirely or substantially upon circumstantial evidence, it is necessary that guilt should not only be a rational inference but also that it should be the only rational inference that could be drawn from the circumstances.
If there is any reasonable possibility consistent with innocence, it is your duty to find the defendant not guilty. This follows from the requirement that guilt must be established beyond reasonable doubt.
In determining the issue of whether the prosecution have satisfied me beyond reasonable doubt as to the identity of the driver of the motor vehicle I will avert to each fact relied upon. It is necessary also to make some findings of fact as to whose evidence I accept with respect to each issue and I will note those findings with the reference to each fact.
Make and Colour of Car
Mr. Broad described the car he observed as a white hatch. The Defendant’s motor vehicle was a white Holden Barina. Therefore the make and model of the Defendant’s car was consistent with the description by Mr. Broad.
Registration Number
Mr. Broad said he recorded the registration number of the vehicle as best he could and gave that registration number to the police. He could not recall the number. Constable Harwood’s evidence was that he identified the motor vehicle as it had the same registration number as he had been given. He was not clear as to the number of digits that were common with the number plate of the Defendant’s motor vehicle but in cross-examination maintained the number’s provided were consistent with the description provided by Mr. Broad. I accept the evidence that there was a consistency between the number’s on the registration plate but given the uncertainty as to which numbers and letters were consistent that the number alone is unable to identify the vehicle as Mr. Broad’s beyond reasonable doubt.
Place of Residence
Mr. Broad observed the white car turn into the block of units (or duplexes) where the Defendant lived. It is not disputed that the Defendant lives at this small complex.
Observations of Constable Harwood
When he attended the residence of the Defendant Constable Harwood observed the white motor vehicle parked with the driver’s side window down. He said the bonnet was hot and when the cross-examined as to the vehicle been parked in the sun he agreed but said the roof was cooler then the bonnet. Having seen and heard Constable Harwood give evidence he impressed as a truthful witness. I accept his observations as to the Defendant’s motor vehicle. He also observed three stubbies of VB in the motor-vehicle
Description of Driver
Mr Broad described the driver as older with grey hair. He could not identify the driver. With due respect to Mr. Lee I reject his submission that the Defendant did not fit the description. The Defendant had what might properly be called ‘salt and pepper’ or dark grey hair as opposed to white grey. I would describe him in those circumstances as Mr. Broad did. The Defendant’s appearance was consistent with the description of the witness Broad. I do not think Mr. Broad’s credit is damaged because he could not describe the witness. It demonstrates he is a careful witness and the circumstances where he glimpsed the driver (as he was effectively being forced off the road) make it unsurprising he could not give a detailed description of the Defendant.
From the manner of driving observed by Mr. Broad the only reasonable inference is that the driving was of such a nature that impairment to the driver was a very strong possibility. Impairment might be by drugs, alcohol or medical condition. The Defendant was found to be extremely intoxicated.
Admissions of the Defendant
In evidence Constable Harwood said the Defendant admitted been the driver of the white Barina on Tully Mission Beach Road. The notes taken at the time reflect the Defendant’s agreement to this proposition. In evidence he said the Defendant had said he returned from Mission Beach ten minutes ago and driven from Mission Beach. However his notes do not record that conversation. They are as follows:
Were you the driver of a white Holden Barina Registration 678 LIX driving on the Tully Mission Beach Road
Yes
Where were you driving from?
Mission Beach to Hone
Have you worked in an industrial area in the last 24 hours?
Yes Bananas
When was your last alcoholic drink
A few minutes before you got me
When did you consume your last drink
At home
What were you drinking
Beer VB
Cans or stubbies
Stubbies
What size stubbies
Normal
How many have you consumed
Two stubbies
When did you have the two stubbies
When I got home
When did you start drinking
Don’t know
Were you suffering from any illness or medical condition
No
Have you or are you taking any medication
No
Did you purchase the alcohol
I did
..While I found Constable Harwood a credible witness the dangers of relying on memory as to conversations is well known. While I accept his evidence as truthful as to his recollection I am concerned that such a vital admission (i.e. that the Defendant was driving a short time before) was not recorded given its fundamental importance to the prosecution case. This is especially so when Constable Harwood testified that he took the notes at the time of the conversation with the Defendant. In those circumstances I do not rely on the uncorroborated and unrecorded admission of the Defendant. Rather I prefer the contemporaneous record of his answers recorded in Constable Harwood’s notebook.
The Defendant also gave other answers were given to questions at the time of the blood alcohol test that were admitted into evidence:
How much have you had to drink
Ah very little
What time did you have your first drink
3 -4 o’clock in the morning
When did you have your last drink
When I got home
How much did you have
2 VBIt was at the Tully Police Station the Defendant denied that he had done anything wrong.
In evidence in chief he gave a different account saying he bought alcohol at the shopping centre just after 9am and was home by 9.30am whereupon he drank between 12 – 15 VB stubbies. He denied drinking prior to driving. He denied telling Constable Harwood that he ever driven only 10 minutes ago. The Defendant said he was very drunk and his recollection was foggy. In cross-examination he admitted he had told the police he only drank 2 beers but said this was because he was not inclined to answer questions.
I am satisfied that, not withstanding his drunken state, the Defendant well understood when that the time of his drinking and driving were crucial facts in this matter. His account of having two drinks when he got home was repeated both at home and the Tully Police Station. It is likely to be true given Mr. Broad’s description of the white car driven on the road perhaps 30 – 45 minutes before police arrived. Given his state of intoxication the obvious inference is that the Defendant must have had a substantial quantity to drink before he drove if his statement that he had 2 VB when he came home is true. Indeed his answers to police at the police station it was recorded that he said he had his first drink at 3 or 4 o’clock in the morning.
Considering the various accounts by the Defendant I reject his trial testimony as not a truthful account of what occurred that morning. Making all due allowance for age and the difficulties in giving evidence I did not find him an impressive witness. I view his version of events given in evidence in Court as to driving to the bottle shop at 9am and then driving home as a recent invention to explain both his intoxication and his admission to driving on the day.
Conclusions
Given the following facts:
· The Defendant drove a car of the same colour and type with consistent registration numbers as seen by Mr. Broad
· The Defendant garaged his car in the same location that Mr. Broad observed the white car drive too
· The car seen by Mr. Broad was driven by a person who fitted a general description of the Defendant
· The Defendant admitted driving on the road on the 19 August
· The Defendant was grossly intoxicated
· The Defendant’s motor vehicle was in a condition consistent with being recently driven
and instructing myself in accordance with the previously cited direction for circumstantial evidence I am satisfied beyond a reasonable doubt that the Defendant was the driver of the motor car seen by Mr. Broad.
I have considered whether there is any other rational inference that could be drawn from the circumstances consistent with innocence. The only other inference open is that another white car of similar description, driven by an older gray haired man, drove into the flats on or about 11am on 19 August 2009. Indeed such an issue was raised on the evidence by the Defendant who stated that persons camping in the vicinity had a white car and that could have been the car seen. There is no other evidence of the existence of this white car and the Defendant appears to have made no attempt to make any further inquiries or draw its existence to the knowledge of the investigators. Constable Harwood frankly said he did not search further when he observed the matching registration numbers (albeit he conceded they may not have been the full numbers). Clearly many white cars would be in existence in this area. However, I am satisfied that the conglomeration of observations of the Defendant and his motor vehicle on the 19 August 2009 allow the drawing of one rational inference: he was the driver of the motor vehicle seen by Mr. Brand on or about 11.10am on 19 August 2009
Having determined he was the driver I am satisfied to the requisite standard, as noted previously, that he operated the motor vehicle dangerously and that at the time of the operation he was adversely affected. I have considered the evidence of his admissions that he had two drinks when he returned home. As I have outlined I consider those admissions were true. Given his grossly intoxicated state when seen at 11.44am I am satisfied that the ingestion of alcohol on his return was not prevent drawing the inference he had drunk substantially more alcohol before driving and that he was adversely affecting by an intoxicating substance when he drove.
Accordingly, the Defendant is convicted of the first charge of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance.
Failure to Provide a Specimen
Following the Defendant’s conversation with PC Harwood he was detained and transported to the Tully Police Station. At the Police Station PC Harwood required he provide a specimen of breath for analysis under s 80(8) of the Transport Operations (Road Use Management) Act 1995. Senior Constable Campbell, an authorised operator of a Breath Analysing Instrument, testified that the Defendant failed to provide a specimen of breath for analysis. The requisition and failure to provide is evidenced by a Fail to Provide Specimen of Breath Certificate issued under s 80(15B) of the Transport Operations (Road Use Management) Act 1995 (exhibit 3).
The effect of a certificate issued under s 80(15B) is set out in s 80
A certificate referred to in subsection (15B) must, on its production in any proceeding, be accepted as evidence—
(a) that a requisition to provide a specimen of the person’s breath for analysis or saliva for saliva analysis was made to the person concerned by the police officer named in the certificate as the police officer making the requisition; and
(b) that the person concerned failed to provide as prescribed by subsections (8) to (8L) a specimen of breath or saliva when required; and
(c) that an approved breath analysing instrument or saliva analysing instrument was available at the place where and at the time when the requisition was made for the purpose of analysing a specimen provided in accordance with the requisition;and until the contrary is proved is conclusive such evidence.
The relevant offence provision for a charge of failing to provide is in s 80(11) of the Transport Operations (Road Use Management) Act 1995:
If a police officer makes a requisition under subsection (8), (8C) or (9) in relation to a person and the person fails to provide as prescribed in this section—
(a)a specimen of the person’s breath for analysis by a breath analysing instrument; or
……..
each of the following applies—
(d) the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1);
(e) the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver licence, as the person would be if the offence were actually an offence committed by the person against the appropriate
provision of section 79(1).Given the production of the s 80(15B) certificate in evidence I am satisfied the prosecution have proved the charge beyond a reasonable doubt. Given that finding s 80(11A) of the Act is relevant as it provides a defence to the charge:
Person not guilty under subsection (11) in particular circumstances
A person referred to in subsection (11) is not guilty of an offence under that subsection if the person satisfies the justices that the requisition to provide the specimen was not lawfully made or that the person was, because of the events that occurred, incapable of providing the specimen or that there was some other reason of a substantial character for the person’s failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.
Section 80(11A) places the proof of the exculpatory provision upon the Defendant. The standard of proof required is not provided for in the section but I am satisfied that the usual standard for excuses where the proof is upon the Defendant – the balance of probabilities – should apply.
Mr Lee submitted that I should be satisfied that the requisition was not lawfully made because there was no proof that the Defendant was the driver and that even if there was a lawful requisition I would be satisfied that the Defendant did his best to comply and physically could not.
With respect to the first issue raised in submission I am not satisfied by the Defendant that the requisition was not lawfully made. My reasoning as to why I am the requisition was lawful is as follows
· Section 80(2AA) of the Act permits a police officer to require any person found by the officer or who the officer suspects on reasonable grounds was during the last preceding 3 hours of driving a motor vehicle on a road or elsewhere to provide a specimen of saliva for a saliva test by the person. Constable Harwood had reasonable grounds for suspecting that the Defendant had driven on the road in the last three hours and could lawfully require the Defendant supply a specimen of breath. Indeed given my previous finding with respect to my satisfaction that Defendant was the driver such a finding seems self evident.
· Section 80(6) of the Act permits a police officer to take a person and take the person to a police station it appears to a police officer in consequence of a breath test carried out by the officer on a specimen of breath of any person that the person is over the general alcohol limit. Constable Harwood then lawfully took the Defendant to the Tully Police Station as a consequence of a breath test returning an indicative reading of 0.234.
· Section 80(8) of the that a person taken to a police station pursuant to s 80(6) of the Act, as the Defendant was, may, while at a police station, be required by any police officer to provide a specimen of the person’s breath for analysis by a breath analysing instrument. The fact of requirement is proved by the s 80(15B) certificate and the evidence of Constable Harwood. The requisition was lawfully given.
The second ground relied upon by the Defendant is that he was incapable of providing the specimen. Constable Harwood described the Defendant’s demeanour at the police station as argumentative. He also testified he was tired and needed prompting to stay awake. His eyes kept closing and he needed assistance to walk. Senior Constable Campbell corroborated this evidence saying the Defendant was falling asleep in the chair. The Defendant was given a number of opportunities to comply with the requirement to provide a breath sample but did not comply. Constable Harwood’s observation of the Defendant was that he was ‘trying but not trying that hard’. Under cross-examination he denied that the Defendant ever suggested that a blood sample be taken as he didn’t have enough breath. Senior Constable Campbell’s evidence is that the Defendant was blowing too softly on his first try and on his next opportunity appeared to blow too slowly and on the final try following another direction it was a failure.
The Defendant’s evidence was that he was physically unable to give a specimen as he did not have the lung capacity. No medical evidence was called to support this claim although I note that there was evidence the Defendant was a smoker and he was, at the time, 64 years of age. Clearly I can take judicial notice that it is a fairly notorious fact that older smokers may have reduced lung capacity. There was no actual evidence provided as to how incapacitated he was. No physical incapacity was particularly noticeable when he gave evidence. He gave evidence he was a farm worker and due to go to the work on the relevant day. He lived alone and drank significant amounts of alcohol. He appeared to have no problem providing a breath test at his home and while it is unclear whether the testing instruments required equal effort[3] there was no explanation why he could perform one without observed problem and not provide the other. It may be that at the time of the testing the Defendant was increasingly affected by alcohol that observably made him tired and argumentative. However, this is not sufficient evidence of inability to provide a specimen to excuse the Defendant from criminal responsibility for the offence of failing to provide. There is no evidence of any other reason of a substantial character for the Defendant’s failure to provide the specimen.
[3]The evidence of SC Campbell that the breath analysis machine at the station was easier then the road side test. This evidence was based on his own experience. Constable Harwood’s evidence was the opposite.
The Defendant has failed to persuade me to the requisite standard that he is excused under s 80(11A) of the Act. Accordingly, as the prosecution have satisfied me of the Defendant’s guilty beyond reasonable doubt he is convicted of charge two.
Unlicensed Driving Suspended Under s 79B
Turning to the law to be applied with respect to this charge: section 78 of the Transport Operations (Road Use Management) Act 1995 sets out the offence of unlicensed driving:
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.
Different penalties apply as to why the driver did not hold a driver’s license authorising him to drive on the road. Section 78(3)(i) of the Act applies when there is a s 79B suspension.
Section 6 of the Transport Operations (Road Use Management—Driver Licensing) Regulation 1999 (the “License Regulation”) sets out the authority for various licence holders to drive motor vehicles. Section 6(2)(c) relevantly applies to authorise the holder of a class C P type, P1 type, P2 type or open licence to drive a class C vehicle (i.e. a motor car).
Section 7 of the Licence Regulations states that the reference to a licence is a reference to a “valid licence”. That term valid, in relation to a licence, is defined in the dictionary in the Licence Regulation to mean (a) the licence has not expired; (b) the licence has not been cancelled or suspended; or(c) the licensee is not disqualified, by order of an Australian court, from holding or obtaining a driver licence.
Hence the effect of the Licence Regulation is that the person must hold a valid driver license authorising them to drive the class of vehicle they are driving. A driver’s licence will not be valid if has been cancelled or suspended.
Also relevant is s 127(4) of the Transport Operations (Road Use Management) Act 1995 sets out the effect of suspension (relevantly):
(4) Suspension under this Act of any licence—
(a) shall, whilst such licence is so suspended, have the same effect as the cancellation of the licence; and
(b) 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;
Section 79B(2) of the Act provides that the driver’s licence of a person charged with an offence named in s 79B (1) of the Act is suspended. Included in the categories of offences list are offences under s 80(11) and s 328A(1) and (2)(A) of the Criminal Code. The suspension starts from when the person is charged (s 79B(4) of the Act) and ends when one of the events in s 79B(4) occurs. Section 79C of the Act sets out when a person is charged for the purposes of s 79B(4). Relevantly, if a proceeding is started by arrest, the person is, for s 79B, taken to have been charged with the offence when the person is arrested. I accept Constable Harwood’s evidence the Defendant was arrested for the relevant offences on 19 August 2009. [4]
[4]He was afterward released on bail. There was an error on the bail undertaking requiring appearance on a Saturday. The error was rectified by the issue of a new date on a notice to appear on 8 October 2009. The issue of the new date does not alter the actual day of arrest for the charges was 19 August 2009.
Constable Harwood testified that he gave the Defendant a notice of suspension and this was admitted into evidence (exhibit 2). The notice of suspension commenced at “12.38pm on 19 August 2008” and notifies the Defendant his authority to drive on a Queensland Road under a non-Queensland Driver licence is immediately suspended(my underlining).
There are three different sections on the form applying to those who hold Queensland, non-Queensland drivers licences and those who hold no category of driver’s licence:
· each and every Queensland drivers licence is immediately suspended (s 79B(2))
· authority to drive on a Queensland Road under a non-Queensland Driver licence is immediately suspended.
· as you do not hold a driver licence, or were unlicensed at the time of the charge you are now immediately disqualified from holding or obtaining a Queensland driver licence (s 79B(4).
The form notes that the Defendant has a Queensland open licence number 62582621. There is consequently an error on the form: that his authority to drive under a non – Queensland licence is suspended. No notation is made beside the Queensland driver’s licence.
The fact of the error was not raised in the trial as a reason why the Defendant did not comply with the suspension. Rather the Defendant’s case was conducted on the basis that he never got the notice or, if he did, he was too intoxicated to appreciate its significance and lost the notice before having an opportunity to understand he was suspended from driving.
The Defendant’s mistaken belief as to the state of his licence cannot relieve him from criminal responsibility. I am satisfied that the Defendant was given a notice of suspension as sworn to by Constable Harwood and in accordance with the declaration on exhibit 2. I am also satisfied that he had some knowledge of the effect of the suspension albeit he seems to have considered that it might not apply to him. I draw this inference from his conversation with Sergeant Gallagher on 28 August 2008 where he asserted he could drive and the police could not stop him as they ‘did not have a reading’. Sergeant Gallagher said on that occasion the Defendant searched for the notice of suspension but could not find it.
I am satisfied that such a mistake as to the effect of a suspension would be a mistake of law (i.e. the legal effect of s 79B) and accordingly is no defence to the charge (see the reasoning of Judge Nase in Coughlin v Curran [2008] QDC 66 and Judge Newton in Smith v McDougall [2009] QDC 157). Further, even if the Defendant lost the notice or did not appreciate its significance because of his degree of intoxication he is not relieved from criminal responsibility as again his mistaken belief as to the validity of his licence would be a mistake of law.
However, it is necessary to consider the effect of s 79D of the Act and the any impact the error in the notice would have.
A suspension applying under s 79B applies by force of law from the moment of charging with the offence not by service of the notice. Such a conclusion is apparent by the language in s 79B. However, the requirement that a notice be served is mandatory under s 79D of the Act :
(1) This section applies if, under section 79B—
(a) a person’s Queensland driver licence, or authority to drive on a Queensland road under a non-Queensland driver licence, is suspended; or
(b) a person is disqualified from obtaining or holding a Queensland driver licence.(2) As soon as practicable after the person is charged with the offence to which the suspension or disqualification relates—
(a) a police officer must give the person a notice about the suspension or disqualification, in the approved form, for the person’s information; and
(b) the commissioner must give the chief executive notice
about the details of the suspension or disqualification.Section 79D(3) then looks at the failure of a police officer to give a notice. That provision provides that:
(3) Failure by a police officer or the commissioner to give notice under subsection (2)(a) or (b) about the suspension or disqualification does not invalidate the suspension or disqualification, or affect anything done in relation to the suspension or disqualification unless, in relation to a notice under subsection (2)(a), the police officer has no reasonable excuse for failing to give the notice.
The effect of s 79D(3) is then that validity of the suspension may be affected if the police officer has no reasonable excuse for failing to give the notice.
Section 79D(3) appears then to create one exception to the application of an immediate suspension by force of law: that the suspension may be invalidated where the police officer has no reasonable excuse for failing to give the notice.
In this case then two issues are live:
(a) Did the mistake on the notice invalidate the notice so it had no effect and was not therefore ‘given’ under s 79D(2); and if the notice was not give; and
(b) Does the police officer have a reasonable excuse for failing to give the notice.I have found no authority on these issues in Queensland. Some guidance is provided by decisions from other States with respect to similar issues but that guidance is limited as each of the decisions turns on the particular legislative scheme.
In Police v Conway (2006)45 MVR 486 the Supreme Court of South Australia considered a notice prescribed under legislation where a scheme similar to the Queensland scheme was in force. In that case the notices of immediate licence suspension referred to a provision that had been repealed years earlier. The issue then was whether a valid notice required the correct citation of the provision.
The Court held:
The general approach to be taken to the question as to whether a particular requirement of legislation is mandatory or merely directory was discussed by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.25 McHugh, Gummow, Kirby and Hayne JJ observed:
[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[50] That issue is to be determined by considering whether the legislation evinces an intention that notices of immediate licence disqualification or suspension should be invalid in the event of non-compliance with s 47IAA(3). The question to be asked is:27
[93] … whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
Furthermore, as McHugh, Gummow, Kirby and Hayne JJ said:
[97] Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.
[51] It is evident with respect to the present legislation that parliament treated as critical to the scheme of immediate licence disqualification or suspension that the offence be accurately identified. This is of particular importance given that the legislation provides that, through an administrative act, a person’s licence can be disqualified or suspended for a lengthy period. In these circumstances, the person disqualified or suspended is entitled to know the precise basis of the disqualification or suspension. Furthermore, if that person seeks to review the order of disqualification or suspension before a magistrate, the issue then to be determined is whether there are reasonable grounds made out to defend such a charge. In the event that the police lay a complaint and the person is convicted, then it is important that the offence the subject of the notice and the disqualification or suspension be correctly identified.
[52] It is also relevant that a decision to make an application under s 47IAB of the Act will often need to be made urgently and, as in both of the cases before this court, without the benefit of legal advice or assistance. A person served with a disqualification or suspension order is entitled to know precisely where to go to find out what defence, if any, that person may have to a charge, details of which have not at that time been reduced to a formal complaint.
[53] While some latitude might be permitted if the relevant offence were otherwise properly identified, even with a mistaken reference to the repealed section, the notices issued in these cases did not effectively do so. The notices made no reference to driving with a blood alcohol concentration of the relevant percentage. Although the heading to the relevant section of the notices referred to s 47IAA, one finds no reference in that section to any prescribed concentration of alcohol. Even a reference in a notice to a category 2 or category 3 offence, as the case may be, would have related the notice to the content of s 47IAA, and would perhaps have caused an inquiry as to just what a category 2 or 3 offence is and where it is defined. It is not for this court to redraft the notice. It is sufficient to identify that the offence in each case was not adequately specified.
[54] We are satisfied that, with respect to the legislation under examination, strict compliance with the statutory requirement to specify the offence was necessary and that a failure to comply with that requirement would result in invalidity of the notice. The purpose of the requirement in s 47IAA(3) is to provide a person served with notice of immediate disqualification or suspension of their driver’s licence the crucial information regarding the offence that the police officer issuing the notice believes him or her to have committed, particularly in a situation involving a significant invasion of civil liberties and the imposition of punishment by administrative act. In the absence of such information, a person could not meaningfully utilise the provisions of s 47IAB of the Act to seek to review the decision of the police officer. This in turn results in a lack of procedural fairness afforded to the person subject to the licence disqualification or suspension. Accordingly, the notice required by s 47IAA(3) plays a crucial role in the legislative scheme. Its importance is underlined by parliament’s use of “must”.
In the Queensland scheme the legislative scheme makes the giving of the notice mandatory. It then provides that the suspension is not ‘invalidated’ by failure to give the notice unless there is no reasonable excuse for the process.
To have a valid notice of suspension the driver must be aware what is being suspended. It is fair to say that the traffic laws are complex. Such a complaint is heard very frequently in the Magistrates Court and many litigants are confused as to the various provisions. The purpose of the notice is to make plain the circumstances that the holder of a valid driver’s licence may not drive. In this case the notice could not serve its purpose as it notified that the authority to drive on Queensland roads under a non-Queensland Driver’s Licence was suspended. That mistake is fundamental to the effect of the notice. Applying the principles of interpretation of the notice as set out in Conway I do not consider it is possible to sever the invalidity to save a valid notice. The notice was invalid.
I have considered the circumstance that the Defendant has testified that he was effectively not misled as he did not receive the notice. I was not impressed by the Defendant’s testimony and accept he had some conversation with Sergeant Gallagher that attested to some knowledge of the legislative scheme. It does not assist the prosecution to assert that an invalid notice is made valid by the intransigence and alleged ignorance of the recipient. Such circumstances as these require a correct and unambiguous notice.
An invalid notice I am satisfied is not given in accordance with the requirement of s 79D(2) of the Act. I accept Mr. Lee’s submission that “the Supreme Court of South Australia (Appellate Jurisdiction) in its finding a requirement for strict compliance with the procedural scheme for immediate disqualification being required in our submission fits squarely with the provisions of s 79E (3) whereby a reasonable excuse is required for any imperfection in the form.” Therefore I find that the suspension will only be invalid if there is no reasonable excuse for the failure to give a notice.
The Prosecution submit that the selecting of the incorrect option in error is a reasonable excuse in the circumstances. I accept the original notice form was as the result of an error. I also accept that there was an attempt by Constable Harwood to correct the error. However, there is a dispute as to the date that the meeting took place and no corroborative evidence to settle the date that Constable Harwood contacted the Defendant. Nor is there any amended notice in evidence. No amended notice was produced by the Defendant to Sergeant Gallagher. I am not prepared to find, without the production of the notice in evidence, that an amended notice in the correct form was served. There was no evidence as to why a corrected notice was thought necessary in these circumstances or whether the mistake on the original suspension form was discovered before 28 August 2009.
The giving of notice is fundamental to the legislative scheme. The question is then is the giving of an erroneous notice a reasonable excuse for not giving a notice in the correct form. The argument is somewhat circuitous but I have reached the conclusion that given the legislative scheme the giving of an erroneous and misleading notice is not a reasonable excuse for failing to give a notice in the proper form. I have also considered the issue as to whether it would be a reasonable excuse that the issue of suspension was explained to the Defendant. There may be many circumstances where such explanation, even in absence of the notice, may be sufficient reasonable excuse. However, in this case there is no recording of what actually was told to the Defendant on the second occasion or even corroboration of the date the meeting took place upon. In those circumstances I am satisfied that the explanation was not sufficiently proved to provide a reasonable excuse for the failure to give notice.
Accordingly, I am not persuaded that the suspension applied by force of law was valid in accordance with s 79D of the Act. In those circumstances the Defendant is entitled to be acquitted of the charge.
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