Police v Strongman

[2010] QMC 26

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Strongman [2010] QMC 026

PARTIES:

POLICE

(prosecution)

v

KIMBERLEY STRONGMAN

(defendant)

FILE NO/S:

MAG133529/10(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Cairns

DELIVERED ON:

3 November 2010

DELIVERED AT:

Cairns

HEARING DATE:

3 November 2010

MAGISTRATE:

Bentley JM

ORDER:

I find the defendant guilty

CATCHWORDS:

TRAFFIC LAW – OFFENCES – LICENCING – whether not knowing of a driver licence disqualification is a mistake of fact or a mistake of law

COUNSEL:

Defendant on own behalf

SOLICITORS:

Prosecution on own behalf

Defendant on own behalf

1. The defendant, Kimberley Strongman, is charged with an offence contrary to s 78(1) Transport Operations (Road Use Management) Act 1995 (the Act), that on the 3 July 2010 he drove a motor car on the Bruce Highway at Woree and at the time he was not the holder of a driver’s licence as his licence had been disqualified because of the allocation of demerit points.

1. It is uncontested that Mr Strongman drove a car on 3 July 2010, however, Mr Strongman contends that he is not guilty of the offence as he was not aware that he was disqualified from driving at the time.

1. The prosecution relied on only one witness to prove its case. Senior Constable Carroll gave evidence that he pulled over the car which Mr Strongman was driving and activated a digital recorder. Mr Strongman produced his drivers’ licence and told the officer that his driver’s authorisation had been suspended. The officer then checked the licence and found that it had been suspended. Mr Strongman, when asked about this, stated that he had “got a Department of Transport letter saying he was suspended from holding a drivers authorisation for 12 months.

1. The prosecution also tendered documentary evidence:

1.          a document under the hand of a delegate of the Chief Executive of the Department of Transport certifying that on 3 July 2010 there was not in force a Driver Licence issued to Kimberley Strongman and tendered pursuant to section 60(2) of the Act;

2. a document under the hand of a delegate of the Chief Executive of the Department of Transport, tendered pursuant to section 95(4) Evidence Act 1977, certifying that on 18 May 2010 a “Notice of Accumulation of Demerit Points” was issued to Kimberley Strongman and annexing a copy of the letter which was issued;

3.          an affidavit evidencing the delegation by the Chief Executive.

1. Mr Strongman gave evidence that he was not aware that his drivers licence had been suspended. He stated that he did not receive the letter dated 18 May 2010 from the Department of Transport. He stated that he had, at that time, not received any letters from the Department of Transport even though he accepted that he told the police officer that he had received a letter in relation to his driver’s authorisation (which, I have been told is an authority to drive a taxi).

1. I do not accept the evidence of Mr Strongman that he did not receive the letter dated 18 May 2010 in the face of the evidence that he told the police officer that he had received a letter from the Department of Transport. It may be that he misunderstood that letter, however, that is not a defence to the charge.

1. Even had Mr Strongman believed he held a licence that belief does not exonerate him. Such a belief is a mistake of law rather than fact[1] and ignorance of the law is no excuse[2].  

   [1]Coughlin v Curran [2008] QDC 066; Lee v Commissioner of Police [2010] QDC 275

   [2] Section 22 Criminal Code

1. The effect of s 39 and s 39A Acts Interpretation Act 1954 is that posting a notice to a person at their last known address is effective service of the notice. In this case, those sections are not of assistance to the prosecution as the certificate tendered does not state or prove that the notice was posted to Mr Strongman, however, given that I find that he did receive the letter, I find that the prosecution has proven the charge beyond a reasonable doubt and I find the defendant guilty.