Commissioner of the Queensland Police Service v Gough [2015] QDC 254

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of the Queensland Police Service v Gough [2015] QDC 254 PARTIES: COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (Appellant) v DESMOND JAMES GOUGH (Respondent) FILE NO/S: Appeal no. 1888 of 2015 DC no. 3357 of 2015 DIVISION: Appellant PROCEEDING: Appeal under s 45 of the Magistrates Courts Act 1921 (Qld) ORIGINATING COURT: Magistrates Court at Caboolture DELIVERED ON: 9 October 2015 DELIVERED AT: District Court at Brisbane HEARING DATES: 17 September 2015, 9 October 2015 JUDGE: Clare SC DCJ ORDER: 1. The commissioner’s appeal is allowed. 2. The order of the Magistrate made on 20 August 2015 is set aside. 3. The appeal of the respondent against the decision of the Commissioner’s delegate, inspector LD Jefferies dated 3 February 2015 is dismissed and that decision of the Commissioner’s delegate is affirmed. CATCHWORDS: APPEAL - Impounded vehicle under chapter 4 Police Powers and Responsibilities Act 2002 (Qld) – Forfeiture by conviction – Application for release of impounded vehicle – Application made after vehicle ceased to be impounded – Appeal against commissioners refusal to grant application to release vehicle under s 79B PPRA – Nature of appeal under s79J PPRA – failure of magistrate to determine the appeal Police Powers and Responsibilities Act 2002 (Qld) Magistrates Court Act 1921 (Qld) -- 1 of 6 -- 2 COUNSEL: M Nicolson for the appellant D Crews for the respondent SOLICITORS: Public Safety Business Agency for the appellant Fowler Lawyers for the respondent -- 2 of 6 -- 3 [1] This was an appeal by the commissioner against the order of a Magistrate for the return of a vehicle to its owner after it had been impounded under the Police Powers and Responsibilities Act 2000 (Qld). The appeal is pursuant to s 45 of the Magistrates Court Act 1921 (Qld). The respondent acknowledges the jurisdiction of this court to hear the matter. Background [2] It is common ground that on 23 September 2014, Mr Gough drove a motor vehicle whilst disqualified by court order. He had a history of driving without a licence. In September 2014, he had bought a brand new Isuzu DMax ute under finance. He drove that vehicle while disqualified on 23 September. He was charged with disqualified driving, the ute was impounded and he was handed an impoundment notice. [3] It is common ground that police had impounded the ute pursuant to s 74E of the Police Powers and Responsibilities Act 2000 (Qld) (the PPRA). Police retained possession of the ute. On 21 January 2015, Mr Gough pleaded guilty to the disqualified driving charge. He was convicted and sentenced. It is common ground that the conviction was Mr Gough’s fourth conviction for a type 2 vehicle related offence within the relevant period as defined by the PPRA. Section 74F (2) provided that a vehicle impounded under s 74E becomes the property of the State upon the fourth conviction. [4] On 3 February 2015, Mr Gough’s partner, Sarah Eichmann, sought the release of the ute from police. She submitted an application under s 79A of the PPRA. Section 79A provided for an application for the release of an impounded car. However the application was only made after Mr Gough had been convicted of the offence. The commissioner’s delegate rejected the application for various reasons. The most fundamental was that the application had no standing. It was too late. The car was no longer impounded. It had become the property of the State. Mr Crews for Mr Gough, endorsed this interpretation of the legislation. That is a concession that the commissioner’s refusal to grant the application was correct. [5] Mr Gough appealed the decision of the commissioner. It was in response to that appeal that the Magistrate found in favour of Mr Gough. On 20 August 2015, Her Honour held “the impounding notice was unlawful and therefore the impoundment was unlawful, the forfeiture cannot stand.” Her Honour then ordered the return of the ute to Mr Gough. The commissioner appeals against that order. The appeal to the Magistrates Court [6] The only proceeding before the Magistrate was Mr Gough’s appeal against the refusal of the application for release of the vehicle. His appeal was filed under s 79K of the PPRA, in reliance of the right of appeal in s 79J. The Magistrate’s powers on appeal are found in s 79O. The section provides that the court may “(a) confirm the decision appealed against ; or (b) set aside the decision and substitute another decision that it considers appropriate.” The respondent submits the power -- 3 of 6 -- 4 to substitute another decision gave the magistrate unfettered jurisdiction. The submission is that the Magistrate was not bound to make a decision on the application made to the commissioner, but was empowered to consider the matter at large. [7] It is an unpersuasive argument. Section 79O opens with the words “In deciding an appeal, a court may-” The power to make “another decision” in s 79O(b) is therefore circumscribed by the context of deciding the particular appeal. Further, paragraph (b) does not simply allow “another decision”, but stipulates a decision in substitution for the decision of the commissioner upon the application. Section 79O is part of Subdivision 3 which is only concerned with appeals against certain decisions of the commissioner. The right of appeal in s 79J is limited to an appeal against a decision of the commissioner on an application under sections 79B, 79D, 79F or 79H of the PPRA. Under s 79N the appeal must be decided on the evidence before the commissioner, although the court may order the appeal be heard afresh. [8] Her Honour had the power to either confirm the commissioner’s decision to refuse Ms Eichmann’s application or set it aside and substitute her own decision on that application. She did neither of those things. As a result, she did not decide the appeal before her. Instead she focused on the contents and circumstances of the impoundment notice and held that the vehicle was not lawfully impounded. She did not identify her jurisdiction to do so. Unsurprisingly, the respondent has not identified any source of jurisdiction outside of s 79O. There was no application or proceeding before Her Honour other than the appeal. The Magistrates Court has no inherent jurisdiction. In the absence of any specific jurisdiction, consideration of the validity of the impoundment notice was beyond the Magistrate’s powers. [9] The Commissioner’s appeal must be allowed and the decision below set aside, which leaves the determination of Mr Gough’s appeal under s 79J of the PPRA outstanding. [10] There is no point in remitting the matter to the Magistrates Court for a decision. It is obvious Mr Gough’s appeal could not succeed. Ms Eichmann’s application to the commissioner was misconceived. As a matter of law it was unsustainable. The commissioner had no power to grant it. The nature of an application for release [11] An application may be made to the commissioner under section 79A, 79C, 79E or 79G of the PPRA. Those sections set out the various grounds on which an application may be brought. The sections are all directed to applications for the early release of an impounded or immobilised vehicle. The avenue of appeal to the Magistrates Court under s 79J is expressly confined to decisions upon those applications. The application to the commissioner [12] Ms Eichmann’s application for release of the ute claimed “severe financial hardship”. Her application therefore purported to be brought under s 79A. The commissioner’s decision on a s 79A application is directed by s 79B. Section 79B limits the commissioner’s discretion to allow an application. The commissioner may only grant the application if satisfied of one of the two grounds set out in s -- 4 of 6 -- 5 79B(3). Subsection (3) (a) contained the only ground relating to financial hardship, and therefore the only ground of relevance. Under that ground, the commissioner had to be satisfied that a refusal to grant the application “would cause severe financial hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning a living.” The application claimed severe hardship for the family caused by the inability of Mr Gough to get to work, but this was not sufficient. Applying the plain language of subsection (3), the commissioner had to be satisfied that hardship was caused by “depriving the applicant of the applicant’s means of earning a living”. Mr Gough was not the “applicant” for the purpose of determining the application. Because the application was brought by Ms Eichmann she was the applicant. Her application advised the commissioner that she was not in paid employment because she had recently given birth. It was not contended that without the ute, the applicant, Ms Eckhart, was deprived of the means of earning a living. Accordingly, the application was not capable of sustaining a decision under s 79B for the release of the ute. The commissioner had no power to grant the application. [13] Even more fundamentally, as conceded by the respondent, the application was lodged too late. An application under s 79A is an application for release of an impounded or immobilised vehicle. All applications available under sections 79A, 79C, 79E or 79G are only for the release of vehicles that are impounded or immobilised. This is clear from the plain language of those sections, and confirmed by the headings. There is no mention of a forfeited vehicle within the subdivision. There is no provision within the subdivision for an application for release of a forfeited vehicle. [14] By necessary implication, under the legislative scheme a forfeited vehicle is not an impounded or immobilised vehicle. They are mutually exclusive concepts. The relevant police powers to impound are found in Divisions 1 and 1A of Chapter 4. Division 1B offers immobilisation as an alternative to impoundment. While forfeiture involves the transfer of ownership, impoundment and immobilisation are temporary states. They prevent the owner’s use of the vehicle for periods defined by the Act. By virtue of s 74 E (3), a vehicle impounded under s74E may be impounded until the conclusion of all proceedings under s74E. If the vehicle does remain impounded until the conclusion of proceedings, the impoundment ceases at that point. Thereafter its status will depend upon the outcome of the proceedings. If the driver is found not guilty, the car must be released pursuant to s 117. But if the driver is convicted, the car immediately “becomes the property of the State” pursuant to s 74F (2). [15] An impoundment could not persist past the resolution of the outstanding charge. The conclusion of proceedings was the maximum impoundment period permitted under s 74E(2). It follows that subsequent to the conviction on 21 January 2015, the ute was not impounded. It could not then be the subject of an application under s 79A. As Mr Crews conceded, the commissioner had no authority to grant Ms Eichmann’s application. It follows that Mr Gough’s appeal should have been dismissed. [16] The Act does make provision for the protection of innocent third parties after a vehicle has been forfeited. An application may be made in the Magistrates court under s 123. There was however no application of that kind for the Magistrate to consider in the present case. -- 5 of 6 -- 6 Other matters [17] Mr Crews did not argue that the Magistrate had set aside the decision of the Magistrate. While Her Honour’s remarks were favourable to Mr Gough, she stopped short of deciding the actual appeal. She drew no ultimate finding about the commissioner’s decision. She made no order under s 79O. I note that the Magistrate appeared to acknowledge that the application to the commissioner had to be made “during the impoundment period.”1 Yet she then went on to find the application was “properly made”, without referring to the expiration of the impoundment period. She did not refer to the requirement in s 79B(3) that an applicant be deprived of the means to earn. Perhaps she regarded the validity of the impoundment notice as a threshold issue to be determined by the commissioner. If so, that is contrary to the legislation. Section 79B (3) forbids the granting of the application unless the commissioner is satisfied of one of the specified matters. [18] Other aspects of Her Honour’s reasoning have no bearing on the review of the commissioner’s decision, but some observations may be made about them. Her Honour considered that the impoundment notice should have presented information more clearly. She also considered that some of the information in the notice, while strictly accurate, was misleading. The obligation to give an impoundment notice is imposed by s 78 of the Act. It must be given to the driver personally. If the driver is a child, the notice must be accompanied by an explanation. The notice must be in writing, in the approved form. It must state the impoundment period, information on how the owner may recover the vehicle and other information prescribed by regulation. The relevant regulation is the Police Powers and Responsibilities Regulation 2012, sections 20A to 20C. Those are the only requirements for an impounding notice under the legislation. There is no obligation to give legal advice or to ensure that the contents of the notice are understood. [19] Her Honour found that a police officer giving notice ought to ensure that the recipient had the capacity to understand it. She considered that the protective provisions of the PPRA governing the questioning of suspects for indictable offences could apply to the delivery of notice to the driver of an impounded vehicle. While it is well established that breach of the rules for questioning may be relevant to issues of admissibility and admission for confessions obtained from such questioning, the matter has no application to the service of a notice. [20] Her Honour concluded that the problems she found had deprived Mr Gough of natural justice, which in turn made the impounding unlawful. Natural justice is a common law concept applicable to decision makers. It does not have application to a forfeiture effective upon conviction. Orders [21] The commissioner’s appeal is allowed. The order of the Magistrate made on 20 August 2015 is set aside. The appeal of the respondent against the decision of the Commissioner’s delegate, inspector LD Jefferies dated 3 February 2015 is dismissed and that decision of the Commissioner’s delegate is affirmed. 1 Gough v Commissioner of Police’s Delegate, Inspector Jefferies, 20 August 2015, decision by Magistrate Callaghan at [9]. -- 6 of 6 --