Davies v Department of Transport and Main Roads [2024] QDC 41

DISTRICT COURT OF QUEENSLAND CITATION: Davies v Department of Transport and Main Roads [2024] QDC 41 PARTIES: GLYNDWR THORNSBY DAVIES (Appellant) v DEPARTMENT OF TRANSPORT AND MAIN ROADS (Respondent) FILE NO/S: 299/2023 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court of Queensland DELIVERED ON: 6 March 2024 DELIVERED AT: Southport District Court (ex tempore) HEARING DATE: 6 March 2024 JUDGES: Judge Porter KC ORDER: 1. The appeal be upheld. 2. The orders made on 18 September 2023 be set aside. 3. The matter be remitted to the Magistrates Court at Southport for a retrial before a different magistrate. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – Appeal against conviction – Where the appellant was convicted of an offence under section 300(1) Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), using a mobile phone while driving – Where the appellant asserted that the Queensland Department of Transport was a trading corporation which cannot impose upon the appellant the Road Rules Regulations without the appellant’s contractual assent. APPEAL AND NEW TRIAL – COURTS AND JUDGES – JUDGES – The duties of a judicial officer in regard to unrepresented litigants – Where the learned magistrate called upon the appellant to disclose his case before the prosecution opened its case. APPEAL AND NEW TRIAL – RE-TRIAL – Remitting a matter for re-trial – Where the respondent conceded the appeal, and the appellant maintained the appeal should be sustained on a different ground from that conceded, which justified dismissal of the charge – Where the principal impact of the -- 1 of 10 -- 2 learned trial judge’s error was its impact on the appellant a fair opportunity to put his evidence before the Court as to the circumstances within which he came to be holding his phone – Whether the appeal should be dismissed, or remitted for re- trial. Cases: Goli v Blue 11 Pty Ltd [2018] QDC 108 McWhinney v Melbourne Health (2011) 31 VR 285 Legislation: Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), section 300(1) SOLICITORS: Appellant appeared in person S J Klemm for the Respondent, Principal Legal Officer of Prosecution Services at the Department of Transport and Main Roads Background [1] On the 18th of September 2023, the appellant was convicted following trial of an offence against section 300(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), which in broad terms makes an offence the use of a mobile phone while driving. The appellant was found guilty and sentenced to a fine with no conviction recorded but accruing demerit points. [2] The appellant raised only one ground of appeal, being that the learned magistrate disallowed his defence. That ground of appeal relied on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail (2015) 256 CLR 171. That ground of defence does not, as a matter of substance, provide any answer to the charge of which the appellant was convicted. I explained the reasons for that conclusion in some detail in the course of legal argument from Mr Davies. It is sufficient for me to explain the following in these reasons. The ground of appeal raised by the appellant [3] Although the submissions before her Honour, and again on appeal, were (respectfully) a little mixed-up, at the heart of the appellant’s argument is the proposition that the Queensland Department of Transport was a trading corporation, and that Mr Davies never entered into a contract with the Department of Transport which authorised the Department of Transport to impose the obligations – relevantly, -- 2 of 10 -- 3 under the Road Rules Regulations - upon him without his contractual assent. That is the argument articulated in his written submissions. He developed that argument in a slightly different way, I thought, on his feet, suggesting that the equipment that had been used to detect the alleged offence was equipment which must, by necessary implication from the Constitution, be equipment of the Commonwealth, and therefore make Queensland Rail in some way, a trading corporation. [4] The argument was developed in various ways. Ultimately, however, at a fundamental level, reliance on the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail is fundamentally wrong. There are many reasons for this conclusion. It is sufficient to note the two most fundamental ones. [5] First, the case has nothing to do with the Department of Transport because, amongst other reasons, the Department of Transport is not a trading corporation. Indeed, it is not a corporation at all. It is a department of the executive government of the State of Queensland. Mr Davies relied on Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail to argue the contrary. However, that case is concerned with whether an entity created by a statute of the Queensland Parliament, which has trading powers conferred upon it, is a trading corporation within the meaning of that phrase in the Commonwealth Constitution, even if the statute which creates that entity expressly declares that it is not a Body Corporate. [6] The High Court concluded that the statutory declaration of the Queensland Parliament was not effective to make an entity which, was a trading corporation in all but name, not a trading corporation under the Constitution. The argument to the contrary was that there was a long history of the creation of entities by statute that were not bodies corporate. That argument did not carry the day. A Department of State such as the Department of Transport, however, is not a separate legal entity at all. It is a manifestation of the executive power of the Crown in the right of Queensland, created by the Governor in Council in Queensland. The issues in the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Queensland Rail have no application at all. -- 3 of 10 -- 4 [7] Second, it is not the Department of Transport which makes the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), nor is it the Department of Transport which enforces those rules made under those regulations in the proceedings under appeal. The regulations are made by the Governor in Council under authority arising from the enabling act of the Queensland Parliament. In effect, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) are a result of the exercise of the legislative power of the Queensland Parliament. Mr Davies correctly submitted that there are aspects of transport activities in Australia, and indeed in Queensland, which are carried out by the Commonwealth, directly or indirectly. That may be so, but there is no question that the Queensland Parliament has legislative power under the Commonwealth Constitution and the Constitution of the Queensland to make the enabling act, and thereby the regulations. [8] In any event, it is not the Department of Transport which enforces the road rules created under the regulations. The road rules created by the regulations are enforced, relevantly in this case, by criminal proceedings under the Justices Act 1886 (Qld). The respondent’s submissions on appeal, at paragraphs 10 to 14, correctly explain how the prosecution is brought in this particular case: 10. The Appellant’s belief that TMR “has no jurisdiction” displays a fundamental lack of understanding as to the process by which simple offences are brought before the Court and who may bring them. The jurisdiction of the Magistrates Court to hear this matter is provided by statute, namely section 19 of the Justices Act 1886: 19 General provision Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court constituted, subject to this Act, by 2 or more justices in a summary manner under the provisions of this Act. 11. Pursuant to section 123V of the Transport Operations (Road Use Management) Act 1995 [‘TORUM’], a proceeding for an offence against a transport Act is a summary proceeding under the Justices Act 1886. A proceeding for an offence against section 300(1) of the Road Rules Regulation may therefore be heard and determined by a Magistrate’s Court. -- 4 of 10 -- 5 12. The process by which proceedings are commenced in the Magistrate’s Court are by complaint in writing. The starting point for who has standing to bring a complaint is section 42 of the Acts Interpretation Act 1954: 42 Any person may prosecute etc. Any person may take a proceeding for the imposition or enforcement of a penalty, or the making of a forfeiture order, under an Act. 13. This is subject to a contrary intention appearing in any Act. There is no restriction in TORUM as to who can prosecute. 14. In this case the complaint was brought by the person, James Kelvin Goldsworthy TRIBE. Mr Tribe is public officer within the meaning of section 4 of the Justices Act 1886, being an employee of the public service of the State of Queensland. However, the only effect that flows from this is that the complaint is not a private complaint, and the proceedings may be determined in an alternative manner. [footnotes omitted] [9] In short, the prosecution is brought by an officer of the department in his or her own name. The ground of appeal raised by Mr Davies in his notice of appeal and outline, and as fully developed by him orally, is wrong. Her Honour was correct to reject the argument. On that basis, the appeal should be dismissed. Error by pre-emptively calling on Mr Davies [10] However, another matter arises from a review of the record below, which in my view, demonstrates that the conviction was affected by appealable error. A review of the transcript shows that Mr Davies was called upon by her Honour to state his ground of defence, whether he would be giving evidence, and what that evidence would be, and did so after Mr Davies pleaded not guilty to the offence, but before the Prosecution opened its case. [11] A prosecution for a criminal offence under the Justices Act 1886 (Qld) is, in all respects, a prosecution, and it needs to be conducted in accordance with the basic principles which inform the fair conduct of a criminal trial. That includes respecting the defendant’s privilege against self-incrimination until close of the Prosecution’s case. It is at that point, that a defendant is properly called on by a Judge, speaking with the authority of the Court, to elect if he or she wishes to give or call evidence. -- 5 of 10 -- 6 There is no warrant for a Court expressly, or by implication, to press a defendant to disclose his or her case before then. To do so fails to respect the privilege against self- incrimination. [12] It is also, at that point in a properly run criminal trial, that the defendant should have an opportunity to make a submission that he or she has no case to answer, before making the election whether to give or call evidence. It is recognised by authority that that right applies equally to trials on indictment and to trials of a complaint. See the cases and analysis in my own judgment of Goli v Blue 11 Pty Ltd [2018] QDC 108.1 Calling on the defendant at the time her Honour did was inconsistent with that fundamental element of a criminal trial. For that reason also, the trial was not conducted according to law by reason of Mr Davies being called upon in the way described above. [13] These matters were raised by me with the parties a day or so before the appeal. Yesterday afternoon, learned counsel for the complainant filed a supplementary submission in response to my invitation to do so, in which she conceded that the circumstances I have described and disclosed in the transcript was a departure from proper procedure for a fair trial. For that reason, the respondent conceded that the appeal should be allowed. Remitting the matter for retrial [14] Ms Klemm who appeared for the respondent, also submitted that the matter should be remitted to the Magistrates Court at Southport to be heard according to law before a different magistrate. I agree that that order should be made. [15] It is important to keep in mind, however, that during the hearing of the appeal I explained to Mr Davies both the basis of the complainant’s concession, and why the complainant considered the matter should be remitted for trial. Mr Davies correctly, in my view, submitted that if he had a defence on the law, which made the prosecution necessarily invalid, then the correct course for the Court to take was not the remittal of the matter for a rehearing but, in effect, for the charges to be dismissed and for him to be acquitted. It is, in my respectful view, correct that if on an appeal conceded by 1 See [41] to [47, and especially [46]. -- 6 of 10 -- 7 one party, the other party says the appeal should be sustained on a different ground which justifies dismissal of the charge, especially a legal ground, that question can inform the exercise of the Court’s power on a successful appeal. [16] I then heard Mr Davies on his legal argument. Although it was developed in several ways, he was unable to persuade me that there was any merit whatsoever in his legal argument. What should then follow? In my view, the consequence is that the matter be remitted for a retrial according to law. To be clear, I hold that view because the principal impact of the error below was its impact on Mr Davies having a fair opportunity to put his evidence before the Court as to the circumstances in which he came to be holding his phone. [17] Frankly, on the evidence as it currently stands, it might be thought, in the light of the photographic evidence, that Mr Davies’ defence on the facts might appear unpersuasive. However, it is not a matter for me, where there has been a miscarriage in respect of the procedures of the trial, to say anything more about the defence on the merits. This is recognised by the respondent who, as I have said, submits the matter should be remitted for a retrial. The duties of a judicial officer in regard to unrepresented litigants [18] The error identified in these reasons was just one instance in which the trial was conducted in a rather informal, peremptory, and inquisitorial manner, unsuited to the fair conduct of criminal proceedings. Some examples. [19] First, her Honour dismissed Mr Davies’ legal argument at the very beginning of the trial, seemingly without hearing anything other than a couple of sentences of a general nature from Mr Davies. While her Honour ultimately did listen to his argument, and correctly rejected it as wrong, it is difficult to see how her Honour could fairly have concluded the argument was unviable on what she had been told at that stage.2 It is frequently the case that litigants in person articulate legal points which are irrelevant, have no merit, or are misconceived. But that is not always the case. Recognising the pressures on magistrates, I observe that sometimes a little patience must be shown to try to grasp the underlying argument, before dismissing it. 2 See TS-8 to -9. -- 7 of 10 -- 8 Second, right at the beginning of the trial her Honour also asked Mr Davies a general question whether he had seen paperwork which will be admitted into evidence, and when he said, “Yes,” she put it to him that the paperwork could be admitted into evidence, and Mr Davies said, “Yes.” Her Honour then relied on that broad statement to challenge Mr Davies whenever he hesitated about admission into evidence of specific documents. When Mr Davies said in response, he had only seen the documents on his phone in the last day or so, the respondent’s counsel piped up from the bar table to say they had been served earlier. None of this was properly considered. Her Honour continued to press Mr Davies whenever he hesitated on admitting the tender of individual photographs, until eventually he gave up making objections.3 [20] It might be thought this was a slightly peremptory approach to the question of fairness arising from when and to what extent Mr Davies had had an opportunity properly to consider the Prosecution’s evidence. While it would not have justified setting aside the conviction, this aspect of the trial was unsatisfactory. [21] Third, her Honour also asked Mr Davies to explain what evidence he would give; as I have found, that should not have been done at the stage it was. But further, when he did give evidence, her Honour’s questioning might be thought to have developed some stages into cross-examination of Mr Davies.4 I empathise with the very great difficulties which arise for a judicial officer when a litigant in person is giving evidence-in-chief, especially when they are unprepared to do so, as Mr Davies was (though that is no criticism intended of him). Often, the judicial officer is unprepared for that to occur and nearly always has no idea what the litigant in person wishes to say in evidence. However, it is important to try to keep in mind that the judicial officer’s role is to assist the litigant in person to give the evidence, not to test the evidence for the judicial officer’s purposes. That is, of course, the role of the other party’s representative in cross-examination.5 Again, this would not have been a sufficient reason to set aside the conviction. But it was not really the correct way to proceed. 3 See TS-5 to -6, TS-14 and TS17. 4 As an example, see TS-131.34 to .44, and TS1-32.10 to .15. 5 McWhinney v Melbourne Health (2011) 31 VR 285 at [33] to [37]. -- 8 of 10 -- 9 [22] Fourth, Her Honour refused the tender of a document which Mr Davies sought to tender, apparently showing these Telstra records disclosed that he was not on the phone. This document might not have been technically admissible. I say nothing about that. The document was not marked for identification, so I do not know what it said. Mr Davies brought it along, but it did not seem to me necessary for it to be admitted on the appeal. But that is irrelevant, because, ironically, it was not admitted on the basis that the document’s contents were irrelevant. Mr Davies’ case gave rise to the question of a s. 25 defence under the Criminal Code Act 1899 (Qld). It is at least arguable that it would tend to support his account that he dropped the phone and was trying to put it back, if he could exclude by independent evidence that he was actually using the phone for a call or other purpose at the time. Its evidentiary weight might be limited, but it still seemed to me to be relevant. Its tender was refused without considering that possibility. Care is required when a litigant in person seeks to tender a document at trial, and objection is taken to it by a legally represented party, to think about the range of ways the document could be relevant. [23] A Court has a duty to assist a litigant in person to secure a fair trial. The scope of that duty is confined. It is confined by the need for the Judge not only to remain impartial, but to appear impartial. It is also confined by the duty of the Court to ensure that the other party, represented or not, gets the full measure of their legal rights. Exactly what this case requires varies from instance to instance. But it does include assisting the litigant in person to understand procedures of the trial and can extend to giving guidance on principles that apply.6 [24] What is always required though when a litigant in person is involved, is patience and close adhesion to the processes which inform a fair trial, particularly a criminal trial. Those procedures provide the architecture which can support a Judge in dealing with the difficulties of unrepresented parties. While I understand the time pressures on busy magistrates, I respectfully observe that on the whole of the transcript in this case, 6 See Rajski v Scitec Corporation Ltd (Unreported NSWCA No 146 of 1986) at pp 14 and 27 (frequently cited in later cases); Minogue v HREOC (1999) 84 FCR 438 at [26] to [33]; In Marriage of F (2001) 161 FLR 189 at 215-227 (Full Court of the Family Court); McWhinney v Melbourne Health (2011) 31 VR 285 at [20] to [26]; Hamond v NSW [2011] NSWCA 375 at [309] to [316], approved and applied by the Full Court of the Federal Court in Szrur v Minister for Immigration 216 FCR 445 at 452- 454; Trkulja v Markovic [2015] VSCA 298; Ross v Hallam [2011] QCA 92 at [12]-[13] and [18] to [22]; R v White (2003) 7 VR 442 at [34]. -- 9 of 10 -- 10 it might be thought there was an unduly peremptory approach to the performance of the duty to ensure a fair trial. Final observations [25] Finally, I have two observations to direct to Mr Davies. [26] First, his legal argument, as articulated in my reasons, and to her Honour, has no prospect of success. To repeat legal arguments which have no prospect of success, can in some cases, be an abuse of the Court’s process. The legal argument put forward in this case should not be advanced a second time in his further trial. [27] Second, I have had the opportunity to consider Mr Davies’ oral evidence given below, although as I have said, it might not have come out to its best advantage. However, if his version is compared to the photographs admitted into evidence, I respectfully suggest that if he wishes to maintain his plea of not guilty, he should consider seeking some legal assistance in running the case. Of course, if he cannot afford to obtain such advice, he will just have to do his best a second time. In that case, when it comes to the evidence he might choose to give, he might be best advised to write it down in advance, so it is clear in his mind what his account is before the trial so that when he takes the witness stand, he can have a better opportunity to clearly state the version of facts he relies upon. [28] In those circumstances, I order that the appeal be upheld, the orders made below be set aside and the matter be remitted to the Magistrates Court at Southport for a retrial before a different magistrate. -- 10 of 10 --