Santosa v Guerin
[2007] QDC 335
•10 December 2007
DISTRICT COURT OF QUEENSLAND
CITATION: Santosa v Guerin [2007] QDC 335 PARTIES: Handojo Santosa
(Appellant)
v
Scott Guerin
(Respondent)FILE NO: 99 of 2007 PROCEEDING: Appeal from Magistrates Court DELIVERED ON: 10 December 2007 DELIVERED AT: Southport HEARING DATE: 20 November 2007 followed by written submissions JUDGE: C.F. Wall Q.C. ORDER: Appeal allowed with costs, complaint dismissed with costs. CATCHWORDS: APPEAL – INFERIOR COURTS – TRAFFIC – appellant convicted of driving without a driver licence and whilst disqualified – previously disqualified by a Queensland court for holding or obtaining a driver licence – appellant held a valid Indonesian driver licence which by Queensland legislation authorised him to drive in Queensland – whether previous disqualification applied to Indonesian driver licence and authorisation, by reason of that licence, to drive in Queensland – jurisdiction of Queensland court over foreign driver licence.
APPEAL – INFERIOR COURTS – COSTS – on successful appeal and in Magistrates Court following dismissal of complaint (on appeal) – difficult, complex and important matter – quantum of costs.
Cases referred to (on costs)
Latoudis v Casey (1990) 170 CLR 534, FAA
Hodgens v Williams [2005] QDC 371, FAA
Williams v Rex and Anor,(No. 2) [2007] QDC 309, DIST
Durrant v Gardner [2000] QDC 198, FAALegislation referred to:
Transport Operations (Road Use Management) Act 1995, ss 78(1), 79(2), 86(2)(f), 127(2)(b), definitions of “non-Queensland driver licence”, “foreign driver licence”, “Queensland driver licence”, “driver licence”, “licence”, “permit”, “transport Act”, “disqualified driver”.
Transport Operations (Road Use Management – Driver Licensing) Regulation 1999, ss. 26, 35
Penalties and Sentences Act, s. 187
Justices Act, ss. 158A, 158B, 232ACOUNSEL K. Flemming QC and R.D. Green for Appellant
M. Whitbread for RespondentSOLICITORS: Appellant – Thynne & Macartney
Respondent –Office of the Queensland Police Service Solicitor
HIS HONOUR: This is an appeal against the appellant's conviction by an Acting Magistrate in the Magistrates Court at Southport on the 2nd February 2007 of driving a motor vehicle without a driver licence and whilst disqualified by a Court from holding or obtaining a driver licence. The offence was alleged to have been committed on the 29th June 2006.
On the 11th April 2006 in the same Court the appellant was convicted of a drink-driving offence and it was ordered that he be disqualified from holding or obtaining a driver licence for three months. This was the disqualification relied on for the offence subject of the appeal. Both are offences against the provisions of the Transport Operations (Road Use Management) Act 1995 - TORUM. The offence the appellant was convicted of is found in section 78(1) of TORUM. That provides:
"78 Driving a 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 -
(a) 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
(b) otherwise - 40 penalty units or one-year's imprisonment."
The offence he was convicted of on the 11th April 2006 is found in section 79(2) of TORUM.
For the purposes of the subject offence it is accepted that the appellant was disqualified as stated on the 11th April 2006, that he has never had a Queensland driver licence and that he drove relying upon a valid Indonesian driver licence.
The appellant is an Indonesian national. Section 35(1) of the Transport Operations (Road Use Management - Driver Licensing) Regulation 1999 (the Driver Licence Regulation) provides:
"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."
TORUM defines a "non-Queensland driver licence" as an interstate licence or a foreign driver licence. The Indonesian driver licence is admittedly a foreign driver
licence. A "driver licence" is defined by TORUM as an Australian driver licence or a foreign driver licence and a"foreign driver licence" means a licence to drive a motor vehicle issued under the law of another country.
In relation to the disqualification order made on the 11th April 2006 there are two relevant statutory provisions. Section 86(2)(f) of TORUM provides that the person convicted of such an offence be disqualified "by such conviction" from holding or obtaining a Queensland driver licence for 1-9 months from the date of conviction.
A Queensland driver licence is defined in TORUM as follows:
"Queensland driver licence means any of the following
licences -
(a) a learner, probationary, provisional, open or restricted licence issued under this Act;
(b) a current driver licence receipt issued under this Act for a learner, probationary, provisional, open or restricted licence."
The appellant has never held a Queensland driver licence so the effect of the disqualification order made on the 11th April 2006, so far as he is concerned, is that he was prevented from obtaining one for three months.
The other relevant statutory provision is section 187 Penalties and Sentences Act and at the relevant time this empowered the Court to disqualify the offender from holding or obtaining a driver licence for such period as is ordered by the Court. Section 187(3) then defined driver licence as a driver licence within the meaning of TORUM.
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 the appellant from holding an Indonesian driver licence in Indonesia".
The Acting Magistrate made the following findings:
(1) The appellant's Indonesian driver licence is a driver licence as defined in TORUM.
(2) The appellant was not a person who had taken up residence in Queensland for the purposes of section 35(5) of the Driver Licence Regulation. There is no challenge to this finding.
(3) Section 127(2)(b) of TORUM deemed his Indonesian driver licence to be suspended on and from the date the appellant became disqualified namely the 11th April 2006, (that is, his authority to drive on a non-Queensland driver licence was suspended from that date).
(4) By the order of 11th April 2006 the appellant was not the holder of a valid driver licence authorising him to drive a vehicle on a road for a period of three months; and.
(5) Because of the sovereignty of Indonesia the appellant's Indonesian driver licence was still valid in that country but clearly not in Queensland.
Both parties agreed that the appeal turned on the meaning of section 127(2)(b) of TORUM. That provides:
"127 Effect of disqualification.
(2) 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 -
(b) would not expire during the period of 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 appellant submitted that section 127 had no application to a foreign driver licence and the respondent submitted that it did and that the reasoning of the Acting Magistrate was correct.
The terms "licence" and "permit" are defined by TORUM as follows:
"licence means a licence, permit or certificate under a transport Act and includes -
(a) a renewal of the licence, permit or certificate; and
(b) 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."
"Certificate" is not defined.
The respondent conceded that "a transport Act" in the definition of "licence" must mean a Queensland transport Act and that must be so. In any event, the term is defined in TORUM as follows:
"transport Act means -
(a) this Act; or
(b) another Act, or a provision of another Act, administered by the Minister that is prescribed under a regulation; or
(c) the Motor Accident Insurance Act 1994 for the following provisions of this Act -
* section 31 (Power to stop private vehicles)
* section 32 (Power to stop heavy vehicles)
* section 47 (Power to set up checkpoints)
* section 48 (Power to require name and address)
* section 49 (Power to require documents to be produced)
* a provision of this Act that is prescribed under a regulation."
Clearly the appellant's Indonesian driver licence is not a licence or certificate under a transport Act of the type defined in TORUM.
The respondent's argument is that the authorisation referred to in section 35(1) of the Driver Licence Regulation amounts to a permit for the purposes of the definition of "licence". In my view it does not. An example of a permit is provided by section 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. Unfortunately for the respondent, section 35(3) does not empower the Chief Executive to "withdraw the holder's authority under subsection (1)" where a Court has disqualified the holder of a foreign driver licence from holding or obtaining a driver licence, which was the order made with respect to the appellant on the 11th April 2006.
The power conferred by section 35(3) is limited to situations where the holder may have a mental or physical incapacity that is likely to adversely affect the holder's ability to drive safely.
Section 26 of the Driver Licence Regulation also gives the Chief Executive power to suspend the authority to drive on a Queensland road of a non-Queensland driver licence holder where the holder has accumulated demerit points. Also, if the holder of a non-Queensland driver licence is convicted of driving more than 40 kilometres an hour over the speed limit or against whom an enforcement order has been made under section 38 of the State Penalties and Enforcement Act 1999 for the offence, then under section 30B of the Driver Licence Regulation the person's authority to drive on a Queensland road under the person's non-Queensland driver licence is suspend for six months.
None of these four situations apply to the appellant. The legislation does not otherwise that I have been able to see, provide for the withdrawal or suspension of the authorisation conferred by section 35(1) of the Driver Licence Regulation. It could have provided that a person's authorisation to drive pursuant to section 35(1) is withdrawn or suspended following conviction for an offence against section 79 of TORUM but it has not done so.
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 (ia) 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 and a disqualification order made under section 187 of the Penalties and Sentences Act would also necessarily include a Queensland driver licence. The Court could not have made an order in relation to the appellant's Indonesian driver licence, as it had no power or jurisdiction to do so. The appellant's Indonesian driver 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. The disqualification order made by the Magistrates Court on the 11th April 2006 did not affect that authorisation.
The Acting Magistrate also referred to the definition in TORUM of disqualified driver, which is as follows:
"disqualified driver means a person -
(a) who is disqualified from holding or obtaining a driver licence because of any Court order; or
(b) who is disqualified from holding or obtaining a driver licence because -
(i) of the allocation of demerit points; or
(ii) the person was convicted of an offence against the Transport Operations (Road Use Management - Road Rules) Regulation 1999, section 20, for driving more than 40 km/h over the speed limit; or
(iii) the person's driver licence is suspended under the State Penalties Enforcement Act 1999; or
(c) whose authority to drive on a Queensland road under the person's non-Queensland driver licence is suspended -
(i) because of the allocation of demerit points; or
(ii) because the person was convicted of an offence against the Transport Operations (Road Use Management - Road Rules)Regulation 1999, section 20, for driving more than 40 km/h over the speed limit; or
(iii) under the State Penalties Enforcement Act 1999."
The Acting Magistrate seems to have relied on paragraph (a) of this definition but the order of the 11th April 2006 did not disqualify the appellant from holding or obtaining his Indonesian driver licence. It disqualified him from holding or obtaining a Queensland driver licence. Paragraph (c) highlights the respondent's dilemma. The power of a Court is limited to disqualifying and TORUM and the Driver Licence Regulation deal with the withdrawal and suspension of an authority to drive on a Queensland road under a non-Queensland driver licence. Paragraph (c) also confines the situations in which suspension could occur to those already referred to. Withdrawal is dealt with separately in section 35(3) of the Driver Licence Regulation.
The appellant's authorisation to drive on a Queensland road did not derive from any Queensland driver licence held by him but derived from section 35(1) of the Driver Licence Regulation by reason of his Indonesian driver licence and, in my view, that authorisation was not affected, withdrawn or suspended by the order made by the Magistrates Court on the 11th April 2006, or any part of it. His Indonesian driver licence was not valid in Queensland and did not authorise him to drive a motor vehicle in Queensland. Section 35(1) was his authorisation to do that because he held a valid Indonesian driver licence.
The appellant was clearly a person who had been disqualified from holding or obtaining a driver licence because of a Court order and therefore was a disqualified driver within paragraph (a) of the definition of "disqualified driver" but that didn't mean that he did not hold a driver licence authorising him to drive on a road within the meaning of section 78(1) of TORUM. By reason of section 35(1) of the Driver Licence Regulation his Indonesian driver licence authorised him to do so and the Legislature has not, as I have said, withdrawn or suspended that authorisation following the disqualification order made on the 11th April 2006.
The result is that the disqualification order made by the Southport Magistrates Court on the 11th April 2006 in respect of the appellant did not and could not affect his Indonesian driver licence, and by section 35(1) of the Driver Licence Regulation that driver licence authorised him to drive on a Queensland road. He was not therefore disqualified on the 29th June 2006. The Acting Magistrate therefore should not have convicted him.
For these reasons the conviction and sentence imposed on the 2nd February 2007 will be set aside and in lieu thereof the complaint against the appellant will be dismissed.
The appellant has asked for costs of the appeal. In my view costs should follow the event. The appeal did in fact involve issues of special difficulty, complexity and importance, in which case the appellant is entitled to a higher amount for professional costs than that prescribed by the scale, see section 232A of the Justices Act and Schedule 2 of the Justices Regulation 2004. If allowable, that higher amount should include the costs of two counsel. The appellant is also entitled to disbursements of the type referred to in the schedule. The respondent concedes that the appellant should have his costs of the appeal and concedes that the issues were complex.
The appellant has also asked for costs of defending the charge in the Magistrates Court. Costs in the Magistrates Court in this case are governed by section 158A of the Justices Act. They are only to be awarded in favour of a successful defendant if the Court is satisfied that it is proper to do so. The list of circumstances in section 158A(2) is not exhaustive. Evidentiary issues were involved and it cannot be said that the appellant has succeeded on technical grounds. At all times the appellant co-operated with police. None of the circumstances in section 158A(2) disentitle him to costs.
By letter dated 14th August 2006 his solicitors wrote to the police prosecutor setting out in detail why the charge should be dismissed. The reasons advanced were those which have resulted in the appeal succeeding. No written response to this letter was forthcoming. The only response was brief oral advice to the effect that "the submission is patently wrong."
By letter dated 14th September 2006 the appellant's solicitors asked the police prosecutor to advise why the submission was wrong. No reply was received and on the 9th of November 2006 the appellant's solicitors again sought a response. Again there was none. By letter dated 6 December 2006 the appellant's solicitors again requested a response and concluded their letter by saying "We otherwise put you on you notice that we will be producing a copy of this correspondence to the Court in conjunction with submissions in relation to costs."
The correspondence is attached to the appellant's written submissions on costs.
The complaint was first mentioned in the Magistrates Court on 13th July 2006. The appellant was required to appear then. It was then adjourned to the 24th of August 2006 when the appellant appeared and pleaded not guilty. A Notice of Adjournment dated 13th July 2006 to the appellant required his personal attendance on the 24th of August. On that date the defendant was released on bail and his bail undertaking required him to appear and surrender into custody on the 21st December 2006. It appears that on the 21st December 2006 or an earlier date his appearance was excused.
Latoudis v. Casey (1990) 170 CLR 534 was decided before section 158A was inserted in the Justices Act but the passages I am about to refer to are still apposite in a case such as the present, where none of the circumstances in section 158A(2) apply. (In Hodgens v. Williams, unreported, District Court, [2005] QDC 371, Judge Robin QC said "all the relevant circumstances are not necessarily exhaustively set out in section 158A(2)" and I agree). Mason CJ said at pages 542 - 3:
"In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs...
It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a Court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings."
Toohey J said at page 565:
"If the prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very
considerable expense, in defending the charge...
It is...enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket."
The correspondence from the appellant's solicitors which I have referred to, the absence of any written response and the continuing requirement that the appellant appear until excused are all facts connected with and leading up to the prosecution and thus relevant in relation to the exercise of the discretion to award costs, see Latoudis v. Casey at page 557.
Taking into account all relevant circumstances I am satisfied that it is proper that an order for costs in favour of the appellant and against the respondent should be made in respect of the proceedings in the Magistrates Court. Such costs as seem just and reasonable may be awarded. See section 158(1) of the Justices Act. Costs are initially limited to scale costs for particular items, section 158B(1), but a higher amount may be allowed if the Court is satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case, section 158B(2).
The appellant has asked for costs to be awarded on an indemnity basis from 16th August 2006. In view of section 158B I am not sure that there is power to make such an order because I think any award of costs above those for the scale items is, by section 158B(2), limited to cases of special difficulty, complexity or importance rather than those special reasons governing the award of indemnity costs, such as I referred to in Williams v. Rex v. Another (No.2), unreported, District Court, Southport, [2007] QDC 309.
For Magistrates Court costs the appellant is, in my view, entitled to amounts higher than the scale amounts by reason of the issues of special difficulty, complexity and importance involved in the case. The appellant should also receive whatever disbursements are allowable under the scale. The appellant should, if allowable, also recover the costs of required appearances when the matter was mentioned, up to the time when his appearance was excused.
The respondent submits that because the prosecution was brought in good faith and the issues were complex the appellant should not receive his costs in the Magistrates Court. I do not, for the reasons I have given, agree.
Schedule 2 of the Justices Regulation does not appear to prescribe any limit on the higher amount for costs which may be allowed. Under sections 158B(2) and 232A(2) of the Justices Act the amount in each case appears to be discretionary but "the prescribed scale should be used as a guide to the proper exercise of the discretion" (Durrant v. Gardner, unreported, District Court, [2000], QDC 198, paragraph 46, per McGill SC DCJ).
The appellant has not provided any submissions dealing with the various scale items claimed for costs and disbursements, including any higher amount of fees claimed because of complexity in both the Magistrates Court and this Court, and
I think he should. As to costs in the Magistrates Court, I think it preferable that an order fixing the amount be made here rather than back in the Magistrates Court.
Now, Mr Hughes, what do you propose?
MR HUGHES: In relation to the costs, your Honour?
HIS HONOUR: See, I can't just trawl through the scales and
decide what you're claiming. I mean-----
MR HUGHES: I appreciate that, your Honour. Would it be appropriate, given the costs regime, that it be referred to a costs assessor for agreement between the parties. Just to have those costs assessed independently and those costs be where they fall.
HIS HONOUR: Well, I mean, if you think you can - I mean, do I have power to make an order referring the matter to a costs assessor in a case like this? If so, where do I find that power? I mean, your submissions were inadequate to start with about costs, because they didn't address the-----
MR HUGHES: The scale items.
HIS HONOUR: -----the scale items or the extra costs sought for the complex matters.
MR HUGHES: I appreciate that, your Honour.
HIS HONOUR: And now you can't tell me whether I've got power
to-----
MR HUGHES: I can't - I can't give you a list of those costs,
I'm sorry, your Honour.
HIS HONOUR: Well, what I think you should do is prepare a document setting out what you claim. Give it to the other side. See what their attitude to it is. If you can't reach any agreement - well, if you reach agreement, let me know and I'll make appropriate orders for the costs in the Magistrates Court and the costs in this Court. If you can't reach any agreement, let me know and I'll hear further argument about
what amounts should be ordered. I won't make any timetable at the moment, but it's in your interests to attend to the matter sooner rather than later.
MR HUGHES: Certainly, your Honour.
HIS HONOUR: And I'll just - if - as I said, if you reach agreement, let my Associate know after the 21st of January. Right, now, Ms Bradley, is that proposal satisfactory to you?
MS BRADLEY: Yes. Thank you, your Honour. I think it's appropriate in the circumstances.
HIS HONOUR: All right. Thank you.
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