CITATION: Valk v Commissioner of Police [2017] QCA 126
PARTIES: VALK, Michael Johann (applicant) v COMMISSIONER OF POLICE (respondent)
FILE NO/S: CA No 260 of 2016 CA No 261 of 2016 DC No 14 of 2016
DIVISION: Court of Appeal
PROCEEDING: Application for Extension of Time s 118 DCA (Criminal) Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Brisbane - [2016] QDC 200
DELIVERED ON: 9 June 2017
DELIVERED AT: Brisbane
HEARING DATE: 31 January 2017
JUDGES: Morrison and McMurdo JJA and Bond J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDERS
The applications are refused, with costs.
CATCHWORDS
APPEAL AND NEW TRIAL›PROCEDURE›TIME FOR APPEAL›EXTENSION OF TIME›GENERAL PRINCIPLES AS TO GRANT OR REFUSAL›where appellant's driver's licence disqualified by order of Magistrates Court›where appeal to District Court dismissed›where application for leave to appeal to Court of Appeal filed out of time›whether primary judge made any reviewable error
COUNSEL
The applicant appeared on his own behalf D R Kinsella for the respondent
SOLICITORS
The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent
REASONS FOR JUDGMENT
[1] MORRISON JA: I have read the reasons of Bond J and agree with those reasons and the orders his Honour proposes.
[2] McMURDO JA: I agree with Bond J.
[3] BOND J: On 16 July 2014, the present applicant was, by an order of the Magistrates Court, disqualified from holding or obtaining a driver's licence for six months. The disqualification arose under ss 78(1) and 78 (3)(b) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the Act) consequent upon accumulation of demerit points. The charge was that the applicant had driven a motor vehicle without a driver's licence, because the allocation of demerit points had suspended his licence.
[4]
The Magistrates Court had received some evidence from the applicant by which the applicant sought to persuade the Court that some of the demerit points may have been due to infringement notices issued to him for offences which may have been committed by other people. However, the learned magistrate nevertheless concluded that he was persuaded beyond reasonable doubt that the charge had been proven.
[5]
The applicant sought to challenge the disqualification, but ultimately failed:
(a)On 5 November 2014, the applicant filed a notice of appeal to the District Court.
(b)On 24 July 2015, Rackemann DCJ struck out the appeal.
(c)On 18 December 2015, the applicant applied to the District Court to set aside the decision of Rackemann DCJ.
(d)On 13 January 2016, Ryrie DCJ dismissed the application filed on 18 December 2015 which sought to have Rackemann DCJ's decision set aside.
[6]
There is no application before this Court in relation to any of those decisions.
[7]
On 12 October 2014, the applicant, who was driving his motor vehicle, was intercepted by the police, for speeding. However, speeding was not his only offending conduct, because he was still within the disqualification period imposed by the order of 16 July 2014. He was subsequently charged with contravening the requirement in s 78(1) of the Act that "a person must not drive a motor vehicle on a road unless the person holds a driver's licence authorising the person to drive the vehicle on the road".
[8]
On 12 August 2015, the applicant was tried in the Magistrates Court in respect of the alleged contravention of s 78(1). He admitted to driving his car on 12 October 2014 but sought to challenge the original conviction on 16 July 2014. The learned Magistrate refused to go behind the 16 July 2014 conviction, once the fact of it had been proved, and convicted the applicant on the charge of contravention of s 78(1) and three other offences. The applicant was sentenced to a single fine of $1,500 and disqualified for a period of two years. The period of disqualification was the minimum which the learned Magistrate could lawfully impose because s 78(3)(a) of the Act specified a mandatory minimum period of disqualification in the circumstances.
[9]
The applicant sought to challenge the 12 August 2015 conviction for unlicensed driving in contravention of s 78(1). On 4 January 2016 the applicant filed a notice of appeal to the District Court. As his appeal was filed out of time, on 6 January 2016 the applicant filed an application for extension of time in which to appeal. On 10 June 2016, the application and the appeal were argued before the District Court.
[10]
On 9 August 2016, the District Court granted the extension of time; dismissed the appeal against conviction; allowed the appeal against sentence and varied the sentence by reducing the fine from $1,500 to $500, but refused to disturb the 2 year disqualification.
[11]
On 27 September 2016 the applicant filed in this Court an application for extension of time within which to appeal and an application for leave to appeal from the District Court judgment. The application for extension of time was necessary because the applicant had filed some 18 days out of time.
[12]
On such applications the Court considers, first, whether there is good reason for the delay and, second, whether it would be in the interests of justice to grant the extension: see R v Tait
[1998] QCA 304 ; [1999] 2 Qd R 667 at 668 and
Puschenjak v Wade [2002] QCA 190 at 4. It is not necessarily fatal that the first limb has not been satisfied: R v GV
[2006] QCA 394 at
[3] .
[13]
The respondent was content to rest his opposition to the grant of leave on the second limb. The respondent's argument was that it was not in the interests of justice to grant the extension because there was no merit in the contention that the learned primary judge had made any reviewable error.
[14]
Before the primary judge, the applicant's principal complaint concerned the two year disqualification period. The learned primary judge correctly noted that overturning that sentence would only be possible if the conviction was set aside, because s 78(3) imposed a 2 year mandatory minimum disqualification period.
[15]
The primary judge then noted that the applicant essentially advanced two arguments: first, that the original conviction of 16 July 2014 which resulted in the original six months disqualification was made in error and, second, that the applicant was justified in driving on 12 October 2014 as he was given advice that caused him to believe his licence was still in force at the time.
[16]
The primary judge conducted the appeal by way of rehearing. He noted that the applicant had given the following evidence before him:
(a)The applicant had been present before the Magistrates Court on the occasion of the conviction and sentence on 16 July 2014.
(b)He had been aware that he had been disqualified for a period of six months.
(c)He admitted that he was driving on 12 October 2014.
(d)He admitted that he was dealt with for that driving on 12 August 2015.
(e)His explanation for why he drove after being disqualified was: My line of thinking, your Honour, after receiving advice from my legal counsel is until the case had been dealt with by a court that could consider the information, the document proof of my not losing the licence under the suspension that was wrongfully — I was wrongfully indicated for — until that evidence was heard, that in the process of the court dealings, that the licence remain in place until the final hearing. I did not deem the hearing to be the final hearing because I immediately stated at the end of that case that I wanted to appeal it with the information that would act as my defence.
[17]
The primary judge then dealt with the applicant's first argument. He noted that an appeal against the order made on 16 July 2014 had been dismissed; the appeal before him was in relation to a different conviction, namely the conviction of 12 August 2015; and he had no power to review the decision to dismiss an appeal by another District Court Judge. He concluded that he was unable to reconsider the correctness of the 16 July 2014 conviction and sentence. He also noted that as at 12 October 2014, the order made on 16 July 2014 was a valid order of disqualification which continued to have effect unless and until it was set aside on appeal: see
McIntosh v Winston [2011] QCA 209 at
[49] .
[18]
As to the second argument, the primary judge thought that the argument raised for consideration whether the applicant had an excuse under s 24 of the Criminal Code. He concluded that the prosecution had failed to disprove beyond reasonable doubt that the defendant's mistake was honest and reasonable. He then went on to consider whether the mistake was a mistake of law or fact, noting that s 24 only excused a mistake of fact. If the mistake was about the legal effect of the court order it would be a mistake of law. The learned primary judge formed the view that he was satisfied on the whole of the evidence that it would not be correct to describe the applicant's state of mind as his having a belief that some action was taken by his barrister to ensure his licence remained valid. Rather the primary judge found: [The applicant] understood the barrister to be expressing an opinion that the [applicant] was entitled in law to drive on the existing licence. Such a belief was a mistake of law not a mistake of fact. It follows that the [applicant] is not excused from criminal responsibility for his acts even though he mistakenly believed he was entitled to drive at the time.
[19]
Before this Court, as he had in the courts below, the applicant appeared on his own behalf. The documents filed in this Court reflected his continued concerns as to the correctness of the original conviction and as to the effect of the disqualification on his livelihood, but did not seek to identify any error in in the reasoning of the primary judge on either of the two grounds which were dealt with by him. The applicant was unable to identify any such error during the course of oral argument.
[20]
As there is no contention which suggests the existence of any reviewable error by the primary judge, the applications should be refused, with costs.
