Police v Tormonston
[2009] QMC 12
•10 December 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Police v Tormonston [2009] QMC 12 |
PARTIES: | POLICE (complainant) v JEFF RUSSEL TORMONSTON (defendant) |
FILE NO/S: | MAG125354/09(2) |
DIVISION: | Magistrates Courts |
PROCEEDING: | Charge |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 10 December 2009 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 3 December 2009 |
MAGISTRATE: | McLauchlan MR |
ORDER: | Defendant is found guilty of the offence charged. Submissions on sentence to be heard. |
CATCHWORDS: | TRAFFIC LAW – OFFENCES - driving without a licence and while disqualified – previously disqualified by a Queensland court from holding or obtaining a driver licence - defendant held a current Tasmanian licence – general authority for holder of non-Queensland licence to drive under that licence in Queensland – whether disqualification in Queensland operated to remove authority to drive under non-Queensland licence – meaning of “valid non-Queensland driver licence” – effect of Queensland disqualification under Tasmanian law to suspend licence in Tasmania – comparison of similar laws in New South Wales, Victoria and South Australia. Transport Operations (Road Use Management) Act 1995 (Qld), s 78(1), s 79(2AA), s 86(2)(a), s 127(2)(b), definitions of “Australian driver licence”, “corresponding document”, “corresponding law”, “driver licence”, “interstate licence”, “licence”, “non-Queensland driver licence”, “permit” Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld), s26, s 30B, s 35, definition of “valid” Vehicle and Transport Act 1999 (Tas), s 19 Road Transport (Driver Licensing) Regulation 2008 (NSW), s 99 Road Safety (Drivers) Regulation 1999 (Vic), s 221 Motor Vehicles Act 1959 (SA), s 97A Santosa v Guerin [2007] QDC 335 Hall v Bobbermen [2009] QDC 188 |
COUNSEL: | Thomas for defendant |
SOLICITORS: |
This case concerns an interesting question in relation to interpretation of the Transport Operations (Road Use Management) Act 1995 – TORUM, and the related Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 – TORUM-DL.
The defendant is charged pursuant to s 78(1) TORUM with driving a motor vehicle while not holding a driver licence authorising him to drive, and while he was disqualified by a court order from holding or obtaining a driver licence. That subsection provides:
78 Driving of motor vehicle without a driver licence prohibited
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.
Maximum penalty –
if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence – 60 penalty units or 18 months imprisonment; or
otherwise – 40 penalty units or 1 year’s imprisonment.
S 78(3) further provides:
(3) If the court convicts a person of an offence against subsection (1) and any of the following circumstances apply, the court, in addition to imposing a penalty, must disqualify the person from holding or obtaining a Queensland driver licence for the period mentioned in relation to the circumstances –
if the person committed the offence while the person was disqualified, by any court order, from holding or obtaining a driver licence – for a period, of at least 2 years but not more than 5 years, to be decided by the court;
The facts in the present case are not in dispute. They may be stated shortly as follows:
· On 21 June 2009 the defendant drove a motor vehicle on a road in Queensland;
· On 15 June 2009 the defendant was convicted of an offence against s 79(2AA) TORUM in the Magistrates Court of Queensland and as a result of that conviction he was, pursuant to s 86(2)(a), disqualified by an order of the court from holding or obtaining a Queensland driver licence for a period of 1 month.;
· At all material times the defendant was the holder of a current Tasmanian driver licence; (I will comment on this agreed fact later).
The question to be determined is whether the disqualification imposed in Queensland on 21 June also disqualified the defendant from using his Tasmanian licence to drive in Queensland.
The starting point is to look at what is meant by the words “driver licence” in s 78. TORUM Sch 4 (the dictionary) provides:
driver licence means –
an Australian driver licence; or
a foreign driver licence
Australian driver licence means –
a Queensland driver licence; or
a corresponding document to a Queensland driver licence issued under a corresponding law to the provision of this Act under which a Queensland driver licence is issued
corresponding document to a document issued under a provision of this Act means a document issued under a corresponding law to the provision.
corresponding law, to an Act or provision of an Act, means a law of the Commonwealth or another State that provides for the same matter as –
for an Act – the Act or provision of the Act; or
for a provision of an Act – the provision
It is therefore plain enough that the holder of a Tasmanian driver licence is prima facie the holder of a “driver licence” within the meaning of s 78, and may lawfully drive on Queensland roads pursuant to that licence. There are however some restrictions placed on a person using a licence issued outside Queensland to drive in Queensland. S 35 TORUM –DL provides, inter alia:
35 Non-Queensland driver licence
(1)A valid non-Queensland driver licence authorises the holder to drive, on a Queensland road, a class of motor vehicle that the holder is authorised to drive under the licence.
(5)If the holder takes up residence in Queensland, the authority is withdrawn –
for an interstate licence – 3 months after the holder takes up residence; or
for a foreign licence –
(i) if the holder is an Australian citizen – 3 months after the holder takes up residence; or
TORUM Sch 4 provides
non-Queensland driver licence means –
an interstate licence; or
a foreign driver licence
interstate licence means –
an Australian licence that is not a Queensland driver licence; or
A Tasmanian licence is therefore a “non-Queensland driver licence”.
Put simply, the defendant argues that the disqualification imposed on 15 June 2009 was only in respect of a Queensland driver licence, and that pursuant to s 35 TORUM –DL the defendant may, despite this disqualification, continue to lawfully drive in Queensland by virtue of his Tasmanian licence.
There is authority from the District Court to support the defendant’s argument. In Santosa v Guerin [2007] QDC 335, Wall Q.C. DCJ dealt with an appeal from a Magistrates Court where the appellant was convicted of the same offence as the defendant in the present case. The appellant was the holder of a current Indonesian licence. As a result of a drink driving offence committed in Queensland the appellant was disqualified by an order of a court from holding or obtaining a Queensland driver licence for a period of three months. During that three month period he drove in Queensland and was charged with an offence against s 78(1). In upholding an appeal against the finding of guilt his honour said:
“Clearly a Queensland Court has no jurisdiction to make a disqualification order in respect of an Indonesian driver licence and the respondent conceded as much. In written submissions the respondent accepted “that a Queensland Court would not ordinarily have jurisdiction or power to deal with a foreign licence and accepts the sovereignty of Indonesia”. It was also accepted “that the Magistrates Court of Queensland does not have authority to make an order preventing from holding an Indonesian driver licence in Indonesia”.
In that case the respondent’s argument was based entirely on the interpretation of s 127(2)(b) TORUM which provides:
127 Effect of disqualification
Where under this or any other Act a Judge of the Supreme Court or District Court or justices orders or order that any person shall be disqualified for a specified period from holding or obtaining a licence of any kind, class or description (other than a Queensland driver licence), each subsisting such licence held by that person shall by virtue of the order where such licence –
Would not expire during the period of the disqualification so ordered, be and be deemed to be suspended on and from the date upon which that person became so disqualified and thereafter until the expiration of the period of disqualification specified in the order.
The terms “licence” and “permit” are also defined by TORUM as:
Licence means a licence, permit or certificate under a transport Act and includes –
a renewal of the licence, permit or certificate; and
an endorsement on the licence, permit or certificate.
Permit means any permit, including any renewal thereof, issued under this Act and in force at any material time.
The respondent argued that the authorisation referred to in s 35 TORUM-DL to use the Indonesian licence in Queensland amounts to a “permit” for the purposes of the definition of “licence” and therefore s 127(2)(b) operates to suspend that permit during the period of disqualification. In rejecting that argument his Honour said:
“In my view it does not. An example of a permit is provided by s 78A of TORUM. An authorisation such as is contained in section 35(1) is not such a permit. Where section 127(2)(b) refers to “each subsisting such licence held by the person” being suspended, it means, in my view, licences of the type defined in the Act and that definition does not extend to a foreign driver licence.
Section 127(2)(b) actually provides that “each subsisting such licence...be and be deemed to be suspended...” which effects a suspension of the licence. The Queensland Parliament has no power to legislate for the suspension of foreign driver licences and the suspension referred to in section 127(2)(b) can only relate to licences under a Queensland transport Act.
What the Queensland Parliament does have power to do is make laws about the use in Queensland of a foreign driver licence and it has done so in section 35 of the Driver Licence Regulation.”
His Honour also commented later:
“Further, for the purposes of section 127(2), the order made by the Court must be one which disqualifies the person from holding or obtaining a licence of a kind (other than a Queensland driver licence) and the order relied on here, in fact, disqualified the appellant from holding or obtaining a driver licence, which means a Queensland driver licence according to the TORUM definitions. Under section 86(2)(f) of TORUM the only order which can be made is one disqualifying the convicted person from holding or obtaining a Queensland driver licence.....................The appellant’s Indonesian licence was not a driver licence authorising the appellant to drive a motor vehicle in Queensland; being the holder of such a driver licence, section 35(1) of the Driver Licence Regulation authorised him to drive on a Queensland road.”
I respectfully agree completely with His Honour’s interpretation of the relevant provisions which he considered. Unfortunately both the Magistrate at first instance and His Honour were not directed to, and did not consider, the definition of “valid” in TORUM-DL. After careful consideration, and with great respect to His Honour, I have reached the view that by failing to consider the meaning of “valid”, His Honour was wrong in upholding the appeal.
His Honour clearly states in respect to the non-Queensland licence, as quoted above, that “being the holder of such a driver licence, section 35(1) of the Driver Licence Regulation authorised him to drive on a Queensland road.” The crucial point is that section 35(1) refers to a “valid non-Queensland driver licence” (my underlining).
“Valid” is defined in the dictionary in Schedule 7 TORUM-DL as follows:
valid, in relation to a driver licence, means –
the licence has not expired; or
the licence has not been cancelled or suspended; or
the licensee is not disqualified, by order of an Australian court, from holding or obtaining a driver licence.
“Valid”, in section 35(1) therefore does not only mean “valid in the jurisdiction where it was issued”. Without the definition in Schedule 7 it could certainly be argued that this is precisely what was meant, and it would be logical if Queensland only recognised a non-Queensland licence if it was valid or current in its original jurisdiction. Parts (a) and (b) would seem to be intended to achieve this result. As neither the word “valid” or the definition were mentioned by the Magistrate or Wall Q.C. DCJ, I assume this is the only interpretation which they gave to “valid”.
Part (c) of the definition however, is quite different and refers not to the status of the licence in its own jurisdiction, but to whether the licensee is personally disqualified in any Australian court from holding or obtaining a driver licence.
The appellant in Santosa v Geurin, and the defendant before me, are plainly caught by paragraph (c) of this definition. At the time the offence in question occurred, they were subject to a previous order of the Magistrates Court of Queensland (an Australian court) disqualifying them from holding or obtaining a driver licence. They therefore do not hold a “valid non-Queensland driver licence” as referred to in section 35(1). It follows that they cannot rely upon that provision to give them authority to drive in Queensland pursuant to their non-Queensland driver licence.
Although the non-Queensland licence may still be current and valid in the jurisdiction where it was issued despite any Court order in Queensland, the authority under section 35(1) to use that licence in Queensland is removed by virtue of the order of disqualification in Queensland, imposed by an Australian court.
Indeed the effect of the definition of “valid” has more far-reaching consequences than the present cases. If the appellant in Santosa v Guerin or the defendant before me had not been disqualified from holding or obtaining a driver licence in Queensland at the time of the offence in question, but had been subject to a similar order from, say, a New South Wales court, in my view even then they would be guilty of an offence under s 78(1) TORUM. Regardless of where their non-Queensland driver licence is issued, if they are under disqualification “by order of an Australian court” then their non-Queensland licence is no longer “valid” as required by s 35(1).
The practical consequence of these provisions is to in effect provide that if a person is disqualified from driving in any State or Territory in Australia, then that disqualification also applies in Queensland. The alternative would allow a person disqualified in Queensland to go to another State, obtain a driver licence in that State, and then return to Queensland with the right to continue to drive despite a current disqualification in Queensland.
That was precisely the case in Hall v Bobbermen [2009] QDC 188. In that case the appellant was disqualified in Queensland, then moved to New South Wales and obtained a driver licence in that State, and then returned to Queensland and drove pursuant to that licence. In upholding an appeal against conviction for an offence against s 78(1), Ryrie DCJ said:
“The definition contained in the Schedule of the relevant Act describes driver’s licence to include and mean an Australian driver’s licence or a foreign driver’s licence. It does not specifically say a Queensland driver’s licence, for example, which – had it said that – Mr Hall would have been unable to contest the matter.”
And later:
“The offence – before it can be committed by anyone including Mr Hall – must be by a person who drives a motor vehicle on the road without a driver’s licence authorising him to drive the vehicle on the road. Clearly that’s not the case; Mr Hall did have a licence to drive within the definition of the provisions of TORUM to drive on the road, namely a New South Wales driver’s licence.”
Once again, Her Honour did not consider the definition of “valid” in TORUM-DL, and therefore once again, and with great respect, I disagree with the conclusion reached in that case.
I mentioned earlier that I would also comment on the agreed fact that at all material times the defendant was the holder of a current Tasmanian driver licence. In my view this agreed fact is incorrect. Section 19 Vehicle and Traffic Act 1999 (Tasmania) provides:
19. Effect of disqualification
(1) If a person is disqualified from driving under the law of another Australian jurisdiction, the person is disqualified from driving in Tasmania.
(2) If a court in another Australian jurisdiction disqualifies a person from driving or a person’s driver licence is cancelled or suspended by such a court the disqualification, cancellation or suspension is effective in Tasmania.
(3) If a court in another Australian jurisdiction imposes a disqualification from driving against a person who holds a driver licence issued under this Act without also suspending or cancelling the driver licence –
(a) the driver licence is, by force of this subsection, suspended if the disqualification is for less than 3 months; and
(b) if the disqualification is for 3 months or more, the licence is, by force of this subsection, cancelled.
The defendant held a current Tasmanian licence until 15 June 2009 when he was disqualified by a Queensland court from holding or obtaining a driver licence for a period of 1 month. Given that section 78(1) TORUM provides - “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”, the effect of the court order made on 15 June is that the defendant was disqualified from driving for a period of one month.
By virtue of section 19(3)(a) Vehicle and Traffic Act 1999 (Tasmania) the defendant’s Tasmanian licence was “suspended” for 1 month on 15 June, and therefore the defendant did not hold a current Tasmanian licence on 21 June.
Returning to the argument that despite the disqualification in Queensland the defendant was entitled to continue to drive under his Tasmanian licence, it is necessary to return to section 35 TORUM-DL and the definition of “valid”. Part (b) of the definition of “valid” requires that in order for the non-Queensland driver licence to be used in Queensland it is necessary that “the licence has not been cancelled or suspended”.
Despite the agreed facts in this case it seems to me that as a matter of law the defendant did not hold a current Tasmanian licence on 21 June as it was suspended at that date under Tasmanian law. Therefore the defendant is unable to rely upon section 35 TORUM-DL to use his “valid non-Queensland driver licence” to drive in Queensland.
In other words, the defendant’s position offends against both part (b) and part (c) of the definition of “valid” because firstly his non-Queensland driver licence was suspended in the state where it was issued, and secondly because the defendant was in any event disqualified by an order of a Queensland court from holding or obtaining a driver licence.
It is with a great deal of caution that I have not followed the strong persuasive authority of two recent decisions of the District Court. In doing so however I point out that I do not disagree with the interpretation of the provisions of the TORUM and Regulations which each case considered. Rather, I am satisfied that both courts overlooked a provision which is plain in its meaning, and which fundamentally alters the position.
Some comfort for this interpretation can be got from a reading of sections 26 and 30B TORUM-DL. These relate respectively to accumulation of demerit points, and driving at a speed of more than 40 km/hr over the speed limit. In each case the effect of the section is that if the person would have suffered a suspension of a Queensland licence in the circumstances, then “the authority to drive on a Queensland road under the person’s non-Queensland driver licence is suspended” for the same period that a Queensland licence would have been suspended had they held a Queensland licence.
It seems that the legislation is designed to ensure that the holder of a non-Queensland driver licence, while generally entitled to drive in Queensland under that licence, should not be in a better position than the holder of a Queensland driver licence to continue to drive if that person either accumulates demerit points; drives at more than 40 km/hr over the speed limit; or is disqualified by a Court from holding or obtaining a driver licence.
It is also worth noting that there appears to be a consistent approach to this situation in other Australian jurisdictions.
In New South Wales the Road Transport (Driver Licensing) Regulation 2008 provides in clause 99:
99 Interstate and International visitors
(1) A visiting driver who holds:
(a) a current Australian driver licence or learner permit (including a New Zealand driver licence or learner permit) issued in another jurisdiction, or that authorises him to drive a motor vehicle of a particular kind may drive a motor vehicle of that kind in this State, and is exempt from the requirements of the Act and this Regulation (other than this clause).
(3) A visiting driver ceases to be exempt under this clause from any requirements of the Act and this Regulation if any of the following happen:
the visiting driver is suspended or disqualified from driving a motor vehicle on a road or road related area in any part of Australia or another country.
In Victoria the Road Safety (Drivers) Regulation 1999 provides in section 221:
221. Licences etc issued outside Victoria
(1) A person, who –
(a) has an appropriate licence or permit to drive a motor vehicle issued in another State or Territory of Australia or in New Zealand and who was ordinarily resident in the issuing State or Territory or New Zealand at the time of issue; or that authorises him or her to drive a motor vehicle of the category being driven, is exempted from the requirement to hold a driver licence or permit for that category of vehicle.
A person is not exempt or ceases to be exempt under subregulation (1) in any of the following circumstances –
(c) if the person is disqualified from driving a motor vehicle on a highway in any State or Territory of Australia or another country or has had his or her licence or permit to drive a motor vehicle in that State, Territory or country suspended;
In South Australia the Motor Vehicles Act 1959 provides in section 97A:
97A – Visiting motorists
Subject to this section, a person may drive a motor vehicle on roads in this State without holding a licence under this Act if –
(a)The person holds –
(i) An interstate licence that authorises the person to drive a motor vehicle of the class to which that motor vehicle belongs; and
(c) The person is not disqualified from holding or obtaining –
an interstate licence in any State or Territory of the Commonwealth; or
It follows that I am satisfied the defendant is guilty of the offence charged. I will hear submissions on sentence.
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