Austin v Commissioner of Police [2018] QDC 41

DISTRICT COURT OF QUEENSLAND CITATION: Austin v Commissioner of Police [2018] QDC 41 PARTIES: CRAIG ANTHONY AUSTIN (appellant) v THE COMMISSIONER OF POLICE (respondent) FILE NO/S: Bundaberg D10/17 DIVISION: District Court at Bundaberg PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court, Bundaberg DELIVERED ON: 22 March 2018 DELIVERED AT: District Court, Brisbane HEARING DATE: 29 January 2018 JUDGE: Butler SC DCJ ORDER: 1. The appeal is allowed. 2. The verdict and conviction entered in the Magistrates Court are set aside. 3. A verdict of not guilty is entered CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – Justices Act 1886 (Qld) s 222 – Where the appellant was convicted of driving without a licence as a repeat unlicensed driver – Whether the appellant’s Victorian driver licence authorised him to drive in Queensland – Whether the appellant had taken up residence in Queensland– Transport Operations Road Use Management Act 1995 (Qld) s 78, Schedule 4 – Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) s 128 Austin v Commissioner of Police [2017] QDC 159 Cesena Sulphur Co. Ltd. v Nicholson (1876) LR 1 ExD 428 Commissioner of Taxation v Miller (1946) 73 CLR 93 Forrest v Commissioner of Police [2017] QCA 132 Levene v IRC (1928) AC 217 Lysaght (1928) AC 234 at 249 -- 1 of 8 -- 2 Robinson Helicopter Co Inc v McDermott [2016] HCA 22 Taylor v Commissioner of Police [2017] QDC 23 COUNSEL: The appellant is appearing on his own behalf C Cook for the respondent SOLICITORS: The applicant appearing on his own behalf Director of Public Prosecutions for the Respondent [1] This is an appeal under s 222 of the Justices Act 1886 (Qld) against the appellant’s conviction on 15 March 2017 for driving without a licence in contravention of s 78 of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM). The conviction related to the appellant’s driving of a motor vehicle on 11 February 2016 at South Kolan near Bundaberg. The appellant was fined $400, disqualified from holding or retaining a driver licence for one month and a conviction was recorded. [2] It is common ground that the appellant was driving at the relevant time and that he did not hold a valid Queensland driver licence. It is also not in dispute that at the time he was the holder of a valid Victorian driver licence. At issue is whether he was authorised at the time, by virtue of his Victorian licence, to drive a motor vehicle in Queensland. Appeal principles [3] An appeal to the District Court under s 222 of the Act is an appeal by way of rehearing. The task of an appellate court in conducting an appeal by way of rehearing was recently explained by the High Court in Robinson Helicopter Co Inc v McDermott as follows: “A court of appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.”1 [4] The judge should, having regard to the evidence led before the Magistrate and “paying due regard to the advantage the learned Magistrate had in seeing the witnesses give evidence, determine for himself the facts of the case and the legal consequences that follow from such findings of fact”.2 The facts [5] There was evidence the defendant owned the South Kolan house, had the electricity in his name and had his mail delivered there. The defendant testified before the magistrate. He said: “Well, I just don’t live in Queensland. I hate Queensland. I don’t know why I bought the place. I do not live here. I come up here to work on the house. I have a caretaker there. What else can I say? That’s about it, really. Yes, the place is in my name. I’m single. I’m not about to put the rates in – put the place in someone else’s name, 1 [2016] HCA 22 at [43]. 2 Forrest v Commissioner of Police [2017] QCA 132 at p.5 -- 2 of 8 -- 3 ‘coz they can quite easily sell it on you. It’s that simple. So it’s mine. It’s in my name. So is the electricity bill, which I’m thinking about putting into Rebecca’s name. I hate Queensland. Too hot for me.”3 [6] On the issue of residency, the prosecution led before the magistrate a recorded conversation between a police officer and the defendant on the occasion he was apprehended driving near his home. Reliance was placed on a comment by the defendant that he lives in Queensland for six months and then in Victoria for six months. There were further comments by the defendant about happenings he observed at his South Kolan property in the months preceding the offence date. [7] Under cross-examination the defendant explained that the reference to six months harked back to 2012 when there was a fire requiring him to be present for the rebuilding work. The defendant was questioned about a reference he made to police about Ms Huggonson, his witness, as being “my Misses”. In response he insisted that Ms Huggonson was his caretaker. [8] In the course of cross-examination it emerged that in the period October 2015 to February 2016 the defendant had made numerous complaints locally about the behaviour of his neighbour who he had often seen during that period. As to his living arrangements, he admitted he had tools, cars, clothes and some furniture at the South Kolan house but “the rest of it’s in Victoria, New South Wales”. [9] The defendant called Rebecca Huggonson who testified that she had been his caretaker since May 2015. She said she owned all the furniture in the house. When asked by the defendant in evidence-in-chief how often he had been at the property she said: “Well, on a usual basis every – probably three months of a year. But it’s been – since you lost your licence and so on and so forth you’ve probably been there more than you should have. ….well, it has more to do with the fact that you suffered an injury and you lost your licence since 15 December last year.” [10] The witness explained the defendant had from October an ongoing injury to his foot that prevented him travelling far. The defendant in making his submissions explained that due to an injury to his foot he was unable to wear shoes at present, which “stops me driving trucks”. He said once his foot was better he would be gone. [11] The prosecution also relied on the fact that the defendant had entered a guilty plea on 6 August 2015 to driving without a Queensland driver licence. He explained he pleaded guilty at the time because he did not wish to return to appear before the court as he was doing a transport job he did not wish to lose. The statutory provisions [12] Section 78(1) of the 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.” 3 Transcript 15 March 2017, 1-39, ll 15-25. -- 3 of 8 -- 4 [13] The term ‘driver licence” is defined in Schedule 4 of the TORUM as meaning: “(a) An Australian driver license; or (b) A foreign driver license.” [14] The term “Australian driver license” means: “(a) A Queensland driver license; or (b) A corresponding document to a Queensland driver licence issued under a corresponding law to the provisions of this Act under which a Queensland driver licence is issued.” [15] At the relevant time the appellant held a Victorian driver licence which was a corresponding document to a Queensland driver licence and thus fell within the definition of being an Australian driver licence. However, it is necessary for the driver licence to not only be held but also to authorise the person to drive on the road. [16] A regulation-making power is to be found in s 171 of the TORUM. Section 150 of that Act provides that a regulation may prescribe rules about the management of drivers, including: “(c) Rules about licences, including, in particular, the circumstances in which, and the reasons for which, they can be cancelled or suspended or conditions imposed on them.” [17] Section 128 of the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld) (the Regulation) is such a regulation. It relevantly states: “(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. … (6) If the holder takes up a residence in Queensland, the authority is withdrawn— (a) For an interstate licence—three months after the holder takes up residence; or (b) …” [18] Schedule 4 of the TORUM defines a “non-Queensland driver licence” as including an interstate licence. [19] At issue is whether, as at 11 February 2016, the appellant continued to be authorised to drive under his Victorian licence in Queensland. If he had taken up residence in Queensland by a date three months prior to 11 February 2016 (that is by 10 November 2015) then his authority to drive under the Victorian driver licence would have been withdrawn by operation of s 128(6) of the Regulation. “Takes up residence” –at common law [20] The term “takes up residence” is not defined in the Act or Regulation. There is substantial Australian and United Kingdom case law addressing the meaning of the word “residence” at common law. [21] The meaning of the word “reside” was explained by Viscount Cave LC in Levene v IRC:4 4 (1928) AC 217, 222. -- 4 of 8 -- 5 “…[it] is defined in the Oxford English dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place. No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules… [22] His Honour continued: “In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained is not the less resident there because from time to time he leaves it for the purpose of business or pleasure. Thus, a master mariner who has his home at Glasgow where his wife and family live, and to which he returned during the intervals between his sea voyages, was held to reside there, although he actually spent the greater part of the year at sea… Similarly a person who has his home abroad and visits the United Kingdom from time to time for temporary purposes without setting up an establishment in this country is not considered to be resident here… But a man may reside in more than one place. Just as a man may have two homes—one in London and the other in the country—so he may have a home abroad and a home in the United Kingdom, and in that case he is held to reside in both places and to be chargeable with tax in this country.” [23] The definition in Levene was cited with approval by members of the High Court in Commissioner of Taxation v Miller.5 That a person may reside in two or more places had been confirmed by Dixon J in an earlier High Court judgement.6 Latham CJ7 also cited with approval the statement of Huddleston B in Cesena Sulphur Co. Ltd. v Nicholson8 that: “There is not much difficulty in defining the residence of an individual; it is where he sleeps and lives.” [24] It was held in Commissioner of Taxation v Miller9 that whether or not a person is a “resident” is a “question of degree and therefore of fact”.10 As explained by Viscount Cave, when considering as a question of fact whether a person is a resident it is necessary to have regard to the purpose of the relevant legislation. “Takes up residence” – the legislation [25] The statement that a person resides “where he sleeps and lives” is less than helpful when considered in the context of modern road transport legislation. As acknowledged in Levene v IRC11 the common law definition must be applied subject to any modification resulting from the terms of the relevant Act. In a useful discussion of the difficulty involved in defining a person’s place of residence, Long SC DCJ in Taylor v Commissioner of Police12 opined: 5 (1946) 73 CLR 93, 99. 6 Gregory v Deputy Federal Commissioner of Taxation (Western Australia) (1937) 57 CLR 774. 7 Commissioner of Taxation v Miller (1946) 73 CLR 93 at 100. 8 (1876) LR 1 ExD 428, 452. 9 (1946) 73 CLR 93. 10 Lysaght (1928) AC 234 at 249 and 247. 11 (1928) AC 217, 222. 12 [2017] QDC 23 at [25]. -- 5 of 8 -- 6 “[It] is necessary to look for a construction ‘which will promote the purpose or objects of the Act’13 and where appropriate, to have regard to the purposes of the provisions,…in the context of the legislative framework in which those provisions appear.14” [26] It is apparent that the Parliament through the TORUM legislation seeks to exercise control over drivers on and users of Queensland roads. It is consistent with these objectives that the legislation should seek to ensure residents of Queensland, as those most likely to use local roads, should where possible be regulated under Queensland law in the use of those roads. [27] The term “takes up residence” is to be understood in this statutory context. I adopt the following statement by Devereaux SC DCJ in Austin v Commissioner of Police15, a decision regarding an earlier charge against the present appellant: “The evident purpose of the legislative scheme, whereby a person holding an interstate licence is authorised to drive in Queensland but not after taking up residence for three months or more, is to provide for a practical, reasonable balancing of the interests of the visitor or newly arrived resident against the interest of the State in the safe regulation of traffic, embodied in the objectives set out in s 3 of the TORUM Act.”16 [28] His Honour observed that the Shorter Oxford Dictionary definition of “reside” includes: “To settle; to take up one’s abode; …To dwell permanently or for a considerable time; to have one’s settled or usual abode, to live in or at a particular place”. This was the definition adopted in Levene v IRC;17 Devereaux SC DCJ went on to conclude: “The prosecution evidence demonstrated a substantial connection to Queensland but not that the appellant’s Queensland property was his ‘one settled or usual abode’”.18 [29] I consider that this test of whether a place is the person’s “settled or usual abode” is the correct test to apply when determining whether a person has “taken up residence” in Queensland. The magistrate’s decision [30] In a carefully considered decision the learned Magistrate concluded that on the evidence she was satisfied beyond reasonable doubt the defendant was not at the relevant time the holder of a driver licence authorising him to drive. Her Honour therefore found him guilty of the charge. [31] In the learned magistrate’s reasons for decision she stated: “As I said, as I see the real issue, it is whether or not the defendant had resided here for more than three months. In considering that particular issue I have taken into consideration a number of matters.” 13 Citing Bropho v Western Australia (1990) 171 CLR 1 at 20. 14 Citing Pilgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [9], [28] and [37]. 15 [2017] QDC 159. 16 [2017] QDC 159 at [10]. 17 (1928) AC 217, 222. 18 At [35]. -- 6 of 8 -- 7 Her Honour then outlined aspects of the evidence before concluding: “It would seem obvious, that, then, the defendant had spent a significant amount of time in the area, and that is obvious that that is more than three months. In all of those circumstances, I find that the defendant did reside in Queensland for more than three months at the time that he was intercepted by police on 11 February 2016.” Consideration [32] As was found by the learned Magistrate the defendant at the relevant time clearly had a place of residence in Queensland and had been residing there for some time. [33] Unfortunately her Honour delivered her decision before the appeal in Austin v Commissioner of Police19 was heard by Devereaux SC DCJ. Accordingly her Honour did not have the advantage of being aware of Devereaux DCJ’s determination as to the correct legal test. [34] It is not sufficient for the prosecution to merely establish the defendant had resided in Queensland for three months or that at the relevant date he had a place of residence in Queensland. It must be established that he had taken up residence in Queensland in the sense that he had settled in Queensland and it was his usual place of residence. [35] It is apparent the test applied by Her Honour differed from that stated by Devereaux DCJ. The learned Magistrate posed the issue as being whether the defendant had resided in Queensland for more than three months. The correct interpretation of the term “takes up residence” requires, in my view, a consideration of whether the person had a settled residence in Queensland that is whether he had made that place his usual place of residence. That he had resided in Queensland for some time was relevant to the determination of that issue but not determinative. [36] As this is a criminal matter, the prosecution bears the significant burden of proving the offence beyond reasonable doubt. In my view, the learned magistrate’s finding that the defendant resided in Queensland for more than three months prior to 11 February 2016 is supported by the evidence. However, that finding falls short of resolving the question as to whether he had taken up residence in the sense required by the legislation. [37] The defendant and his witness both testified that his Bundaberg address was not his permanent place of abode. The evidence the defendant had other places of residence interstate was not disputed. He was not cross-examined to determine whether he had a settled or usual place of residence interstate. Had it emerged from the evidence that he did not have a settled place of residence interstate, or that his interstate residential arrangements were less stable than those at South Kolan, or that his periods of residence at other interstate addresses were substantially less than at South Kolan, then those facts may have undermined the credibility of the testimony of the defendant and his witness and supported an inference that the Queensland address was indeed his settled place of residence. The details of his interstate arrangements were not elicited. [38] As the appellant elected to testify before the Magistrate, the opportunity presented itself to obtain from him under cross-examination precise details about his living 19 [2017] QDC 159. -- 7 of 8 -- 8 arrangements in both Queensland and interstate. I echo the comments made by Devereaux SC DCJ in respect of the trial of an earlier charge against the appellant when I observe that again on this occasion the opportunity to challenge the appellant’s broad assertions was barely taken up. [39] That the defendant had resided in Queensland for more than three months did not of itself satisfy the relevant element of the offence. There was evidence consistent with the defendant’s stay at the relevant time being longer than usual due a foot injury and a temporary loss of his licence. His stated intent was to leave as soon as his foot was healed. His assertions as to the temporary nature of his recent period of residence was supported by the testimony of Ms Huggonson. These matters raise doubts notwithstanding the appellant’s substantial connection to Queensland and the lack of persuasive detail in the appellant’s explanations. Ultimately, the onus of proof is borne by the prosecution. [40] On an independent review of the evidence before the Magistrates Court, applying the legal test I have outlined, I am unable to be satisfied to the necessary standard as to the guilt of the defendant. I am left with a reasonable doubt as to whether the defendant had “taken up residence” at South Kolan in the sense that he had made it his settled and usual place of residence. [41] The appeal is allowed, the guilty verdict and conviction entered in the Magistrates Court are set aside. An acquittal will be entered. -- 8 of 8 --