Queensland Police Service v Hudson

[2016] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Police Service v Hudson [2016] QDC 186

PARTIES:

QUEENSLAND POLICE SERVICE
(Appellant)

v

HUDSON
(Respondent)

FILE NO/S:

1836/15

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 March 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2016

JUDGE:

Rackemann DCJ

ORDER:

The appeal is allowed

CATCHWORDS:

APPEAL – order of Magistrate striking out a complaint and summons with respect to a speeding offence – where the striking out was on the basis of the complaint and summons being filed outside the time provided for in the TORUM – where the commencement of that period had been reset by operation of s 60 of the SPEA – where proceeding within time

COUNSEL:

The appellant appeared in person

P Price for the respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the respondent

1. This is an appeal against the decision of a magistrate, made on 9 April 2015, to strike out proceedings which had been commenced by way of a compliant and summons alleging an offence of speeding against the respondent.

1. The offence alleged in the complaint and summons is said to have occurred on the 2nd of July 2012.  The complaint and summons was filed on the 21st of October 2014, more than two years after the alleged offence.  The learned magistrate struck out the proceeding on the basis that, by the time it was commenced, the limitation period provided for in section 64(4) of the Transport Operations (Road Use Management) Act 1995 (TORUM) had expired.  That section provides as follows:

(4) If the proceeding is for an offence other than an offence that may be started as mentioned in subsection (2) or (3), the proceeding must start:

(a) within one year after the offence was committed;  or

(b) within six months after the offence comes to the complainant’s knowledge, but within two years after the offence was committed.

1. It was uncontroversial that that is the primary provision of relevance in relation to the limitation period, and, on its face, it would appear that the proceeding was, indeed, started beyond the time referred to in that section.  The commencement date of the period provided for in that section, however, is the subject of variation by reason of the provisions of the State Penalties Enforcement Act (SPEA).  In that regard, it is relevant to note that the following facts are accepted by the parties:

(1)   The respondent’s wife was issued with an infringement notice in relation to the offence on the 24th of July 2012.

(2)   The respondent’s wife completed a known user declaration, with the consequence that the infringement notice to her was withdrawn on the 16th of August 2012.

(3)   An infringement notice was, on the same day issued to the respondent.

(4)   As a result of the respondent not responding to the infringement notice, the matter became the subject of an enforcement order against the respondent.

(5)   At some point, the respondent sought a cancellation of the enforcement order pursuant to section 56 of the SPEA.  That application was made on the basis that he did not, in fact, receive the infringement notice.

(6)   The enforcement order was, in fact, cancelled on 18 June 2014.

(7)   Pursuant to section 57(5)(c) of the SPEA, a fresh infringement notice was then issued to the respondent on 3 July 2014.

(8)   As a result of a court election received from the respondent, a complaint and summons was filed on 21 October 2014.

1. Given that history, Section 60(4)(c) of the SPEA became relevant.  It provides as follows:

60 Provisions relating to cancellation of enforcement order

…

(4) Without limiting subsection (3), if a relevant enforcement order is cancelled—

…

(c) the period of limitation within which a proceeding for the offence to which the order relates may be started for the matter starts on the day the order is cancelled.

1. The effect of that provision, read with section 62(4) of the TORUM, is that the period of limitation within which a proceeding for the subject offence may have been started was to be calculated pursuant to section 62(4) of the TORUM, but with the period of limitation commencing on the date that the enforcement order was cancelled, being the 18th of June 2014.  Consequently, the limitation period would have extended for at least one year from that point on the basis of the application of section 62(4)(a) of the TORUM as [indistinct] by section 60(4)(c) of the SPEA.  In this case, the proceeding was commenced within that timeframe and so was not beyond the limitation period. 

1. The learned magistrate’s conclusion to the contrary was on the basis that nothing in the SPEA extended the limitation period.  No authority was cited for that proposition.  I do not consider it is beyond the legislative of competence on the State to provide for the commencement date of a limitation period as provided for in one piece of legislation, be varied in specific circumstances covered by another piece of legislation.

1. The respondent on the hearing of this appeal did not contend, on its face, section 60(4)(c) of the SPEA did not have the effect contended for by the Crown.  Rather, he questioned whether that provision was itself lawful.  In his view, the provision is inequitable, because by reason of the effect it has of deferring the commencement of the limitation period, he says he is denied the opportunity for a prompt trial.  He was critical of what he saw as the tardiness of the process. 

1. It should be noted, however, that section 60 is confined in its application to circumstances in which the defendant has already been the subject of an enforcement order and has been successful in having the enforcement order cancelled.  It has the effect of resetting the commencement of the limitation period.  Once the person has been relieved, on their own application, of being the subject of an enforcement order, it is difficult to see why that is inequitable that the limitation period is reset.  In any event, there is no basis to conclude that it is beyond the competence of the legislature to pass a law to that effect. 

1. For those reasons, the appeal is allowed. 

1. It should be noted that the appeal is only against the decision which struck out the proceeding.  As a consequence, the matter is remitted to the Magistrates Court, where it may proceed.  I say that particularly to reassure Mr Hudson, who appeared in person, that the result of this appeal does not mean that he has been found guilty of the offence, nor does it deprive him of any defence that he may have available to him when the matter is tried in the Magistrates Court.