Carolan v Cohen [2011] QDC 103

DISTRICT COURT OF QUEENSLAND CITATION: Carolan v Cohen [2011] QDC 103 PARTIES: Senior Constable Lincoln Carolan (Commissioner of Police) (Appellant) V Bill Cohen (Respondent) FILE NO/S: Appeal 201/10 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court, Cairns DELIVERED ON: 10 June 2011 DELIVERED AT: Cairns District Court HEARING DATE: 13 April 2011 JUDGE: Robertson DCJ ORDER: Appeal Allowed. Matter remitted to Magistrates Court at Cairns to be dealt with according to law. CATCHWORDS: APPEAL- whether Magistrate had erroneously ruled that part of the charge under s 78(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM) was an element of the charge requiring proof beyond a reasonable doubt; whether Magistrate erred in ruling that a certificate tendered pursuant to s 95(4) of the Evidence Act 1977 (Qld) was insufficient proof of service of Notices under the TORUM Regulation. Legislation Acts Interpretation Act 1954 (Qld) Evidence Act 1977 (Qld) Transport Operations (Road Use Management) Act 1995(Qld) -- 1 of 7 -- 2 Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld) Cases Coughlin v Curran [2008] QDC 66 Lee v Commissioner of Police [2010] QDC 275 COUNSEL: Ms H. Price for the applicant Respondent in person [1] The respondent Bill Cohen was charged with the following offence: “That on the 4 th day of July 2010 at AEROGLEN in the Magistrates Court District of Cairns in the state of Queensland one BILL COHEN did drive a motor vehicle namely a motor car on a road namely Captain Cook Hwy Aeroglen the said BILL COHEN not being at the time the holder of a driver licence authorising him to drive that vehicle on that road and at the time of committing the offence the said BILL COHEN was disqualified from holding or obtaining a driver licence because of the allocation of demerit points and it is averred that the said motor car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said Captain Cook Hwy Aeroglen is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 4th day of June 2010 the said BILL COHEN was not the holder of a driver licence authorising him to drive the said motor vehicle on the said road.” [2] It appears from the Bench Charge Sheet that Mr Cohen pleaded guilty when first before the Cairns Magistrates Court on 22 July 2010 but this plea was set aside and a plea of not guilty entered inferentially on the basis of what Mr Cohen then told the presiding Magistrate. [3] Ultimately a trial was held before her Honour Magistrate Bentley on 9 September 2010 and her Honour reserved her decision, and on 5 October 2010 found the -- 2 of 7 -- 3 respondent not guilty for reasons which are now challenged on appeal by the original complainant police officer. [4] The point argued on appeal relates to what is submitted is an error of law made by her Honour in acquitting the respondent on the basis of her finding that as he had not received a notice under s 25(2) of the Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (“the Regulation”), and as a result a certificate tendered pursuant to s 95(4) of the Evidence Act 1977 (Qld) was insufficient proof that the notices were sent to the respondent. I was told by counsel appearing for the appellant that in cases of this kind the police always proceed as they did in this case, and that this is the first time that this mode of proof has not been accepted. Accordingly the appeal was described as a “test case” and I reserved my decision to give the matter careful consideration. [5] There is no dispute that the respondent was driving a motor vehicle on the Cook Highway on the date alleged. He gave evidence, as did his mother, which her Honour accepted to the effect that despite still living at the address recorded in his provisional licence, he had not received notices under s 25(2) of the Regulation and in particular a notice described as a “Notice to Choose”. The prosecution at trial sought to prove service by tendering a certificate under s 95(4) of the Evidence Act 1977 (Qld). [6] The effect of s 25 of the Regulation is that if a person holding a Queensland driver’s licence accumulates a certain number of demerit points over certain periods the Chief Executive must give the person a written notice called a “Notice to Choose” requiring the person within a specified time of at least 21 days to choose between: (a) having the person’s licence suspended for the requisite suspension period; or (b) agreeing to be of good behaviour while driving for a year. Pursuant to s 25(4) of the Regulation if within the specified time the person does not notify the Chief Executive of the person’s choice the person’s licence is suspended for the requisite suspension period starting on the sanction date. The certificate tendered before her Honour certified relevantly as follows: -- 3 of 7 -- 4 “5. The following documents attached hereto and identified by the letter (s) ‘A’ was produced by the said computer during the said period. The documents show that: (a) On 6 April 2010, a written Courtesy Notice – Your Licence Option Choice was given to Bill COHEN, Driver Licence No. 80761686, date of birth 21 July 1988. This notice was given by sending it by post to the last known address recorded by the Department of Transport and Main Roads, 40 Punch Close, Kuranda Queensland 4881. (a) On 22 March 2010, a written Notice to Choose was given to Bill COHEN, Driver Licence No. 80761686, date of birth 21 July 1988. This notice was given by sending by post to the last known address recorded by the Department of Transport and Main Roads, 40 Punch Close, Kuranda Queensland 4881.” and “9. The said documents were not returned unclaimed at the Department of Transport and Main Roads.” [7] There is also no dispute that the respondent’s licence was suspended as at 4 July 2010. A certificate issued under the hand of a proper delegate of the Chief Executive of the Department of Transport and Main Roads pursuant to s 60(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“the TORUM”), was tendered and was not challenged. [8] It’s certified as follows: “1. On 4th July, 2010 there was not in force a Driver Licence issued under the Transport Operations (Road Use Management) Act 1995 and Transport Operations (Road -- 4 of 7 -- 5 Use Management – Driver Licensing) Regulation 1999 to Bill Cohen, Date of Birth 21 July 1988. 2. I further certify that Bill Cohen was suspended from driving for a period of three months from 21st April, 2010, following a Demerit Point Suspension.” [9] Her Honour correctly held by reference to Coughlin v Curran [2008] QDC 66 and Lee v Commissioner of Police [2010] QDC 275, that an honest and reasonable mistake by a person that he or she held a valid licence when they did not was a mistake of law and not a mistake of fact and, as ignorance of law is no excuse, the appellant’s belief in this case “does not exonerate him”. In my view her Honour was correct in so holding however she then went on to find that “it is an element of the offence…that his licence was disqualified because of the allocation of demerit points.” [10] In so holding her Honour was in error, in that on a proper construction of the section under which the appellant was charged, namely s 78(1) of the TORUM, the statement in the charge before her Honour that the appellant “was disqualified from holding or obtaining a driver licence because of the allocation of demerit points”, is not an element of the offence but goes only to penalty: s 78(3)(b) of the TORUM. This was not pleaded originally as a ground of appeal so I invited the parties to make written submissions as to whether the prosecution should be given leave to add this as a ground of appeal. The appellant has made those submissions and Mr Cohen has not and I give leave to the appellant to add a ground of appeal in the following terms: “That her Honour in holding that the words in the charge ‘and at the time of committing the offence the said Bill Cohen was disqualified from holding or obtaining a driver licence because of the allocation of demerit points’ was an element of the offence.” [11] The appeal should be allowed on that ground. [12] Technically it is not necessary for me to further consider the matter however because of the importance of the issue and in deference to the written outline of the -- 5 of 7 -- 6 appellant filed on 22 February 2011 at the original hearing I will consider whether her Honour also erred in not accepting the s 95(4) certificate as constituting proof of service of the notice under s 25(2) of the Regulation. Her Honour seemed to come to that conclusion on the basis of her acceptance of the respondent’s evidence that he did not receive the notices referred to in the certificate, and the fact that the actual notices sent were not attached to the certificate as certified in the certificate. As she correctly noted Exhibit A to the s 95(4) certificate did not contain copies of the actual notices but simply a short description of them obtained from the department’s IBM mainframe core operation system’s computer using programs called “TRAILS” and “TICA”. [13] Section 95 of the Evidence Act 1977 (Qld) deals with admissibility of statements produced by computers. Section 95(4) is in these terms: “(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing all or any of the following things, that is to say – (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by computer; (c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate; and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of the matters stated in the certificate and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.” -- 6 of 7 -- 7 [14] It follows that the certificate in a practical sense was evidence of the facts contained in paragraphs 5 and 9 of the s 25(4) Certificate to which earlier reference is made, and the fact that the actual notices were not attached is irrelevant. [15] Given that her Honour had already correctly held by reference to ss 39 and 39A of the Acts Interpretation Act 1954 (Qld) that the posting of a notice to a person at their last known address is effective service, it is difficult to see how she could then hold, by reference to the s 95(4) certificate that there was insufficient proof “that the proper notices were sent to him”. [16] It seems to me that provided that notices pursuant to s 25(2) of the Regulation are sent to the last known address of the appellant and which in this case was in fact the address on his provisional licence and where he lived, it is irrelevant that he says he never received the notices. [17] It would follow that her Honour erred in holding that there was insufficient proof of service of the notices upon the appellant. In the circumstances the appeal is allowed and the matter is remitted to the Magistrates Court at Cairns before her Honour Magistrate Bentley to be dealt with in accordance with the law. -- 7 of 7 --