Eveston v Queensland Police Service [2008] QDC 121

DISTRICT COURT OF QUEENSLAND CITATION: Eveston v Queensland Police Service [2008] QDC 121 PARTIES: PAUL FRANCIS EVESTON Appellant v QUEENSLAND POLICE SERVICE Respondent FILE NO/S: D116 of 2007 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Mackay DELIVERED ON: 13 May 2008 DELIVERED AT: Mackay HEARING DATE: 12 February 2008 JUDGE: K J O’Brien DCJ ORDER: The appeal should be allowed and the decision of the court below, in so far as it includes an order for such disqualification, should be set aside. CATCHWORDS: Appeal against disqualification from holding or obtaining a drivers license – appellant convicted of riding a bicycle under the influence of liquor or a drug – failure to provide a specimen for analysis – power to disqualify – meaning of motor vehicle, tram, train or vessel – no power to disqualify – appeal allowed COUNSEL: Mr J M Aberdeen for the Appellant Mr N Rees for the Respondent SOLICITORS: Legal Aid Queensland for the Appellant Director of Public Prosecutions for the Respondent [1] This is an appeal against the sentence imposed upon the appellant in the Magistrates Court at Mackay on 16 August 2007. The appellant had there pleaded guilty to two offences against the provisions of the Transport Operations (Road Use -- 1 of 9 -- 2 Management Act) 1995 (‘TORUM’). He was placed on probation for a period of two years and it was further ordered that he be disqualified from holding or obtaining a driver’s licence for a period of nine months. It is this last mentioned part of the sentencing order which is the subject of this appeal. The appellant contends that the court had no power to order that he be disqualified from holding or obtaining a driver’s licence. [2] On 13 July 2007 the appellant was intercepted by police officers as he rode his bicycle on Lansdowne Road at Mackay. It was apparent to the officers that the appellant had consumed a considerable amount of alcohol and he was then conveyed to the Mackay Police Station. A request was there made of him that he supply a specimen of his breath for analysis. He refused to do so and was then charged with the two offences that are the subject of this appeal. The first of those offences related to the appellant being in charge of a bicycle whilst under the influence of liquor or a drug. The second offence related to his failure to provide as prescribed a specimen of breath for analysis. [3] The offence of riding a bicycle whilst under the influence of liquor or a drug is provided for in s 79(7) of the TORUM legislation. That section provides as follows:- “Any person who whilst under the influence of liquor or a drug drives or is in charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence. Maximum penalty for subsection (7)—40 penalty units or 9 months imprisonment.” The term “vehicle” is defined in the legislation to include any type of transport that moves on wheels and a hovercraft but does not include a train or tram. The term “motor vehicle” means a vehicle propelled by a motor that forms part of the -- 2 of 9 -- 3 vehicle, and includes a trailer attached to the vehicle. The term bicycle is separately defined as follows:- “Bicycle means a vehicle with 2 or more wheels that is built to be propelled by human power through a belt, chain or gears, whether or not it has an auxiliary motor, and - (a) includes a pedicab, penny-farthing and tricycle; but (b) does not include a wheelchair, wheeled recreational device, wheeled toy, or any vehicle with an auxiliary motor capable of generating a power output over 200 watts whether or not the motor is operating.” It is clear from these several provisions that s 79(7) is not intended to apply to the operation of motor vehicles, trains or trams. They are provided for in s 79(1) of the Act as follows:- “Any person who while under the influence of liquor or a drug:- (a) drives a motor vehicle, tram, train or vessel; or (b) attempts to put in motion a motor vehicle, tram, train or vessel; or (c) is in charge of motor vehicle, tram, train or vessel; is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.” [4] Although both section 79(1) and 79(7) make reference to the maximum penalty that can be imposed for an offence, neither section contains any reference to the power of a court to order a licence disqualification. The power to make any such order is contained within s 86 of the Act, the dominant provision of which is s 86(1). That section provides as follows:- “A person who is convicted of an offence in relation to a motor vehicle against section 79(1) (emphasis added) shall, if during the period of 5 years prior to conviction the person has not been previously convicted— [of certain specific offences] be disqualified by such conviction and without any specific order for a period of 6 months from the date of such conviction from holding or obtaining a Queensland driver licence.” -- 3 of 9 -- 4 [5] It is clear from the very wording of the section that this provision applies only to those offences against s 79(1) that are “in relation to a motor vehicle”. It is not applicable to those offences against s 79(1) that involve trams, trains or vessels. Moreover, it has no application to any offence against s 79(7) - these involving animals or the driving “of any vehicle other than a motor vehicle”. [6] Counsel for the respondent contends however that the power to order a period of disqualification in this case arise from the provisions of s 80(11) of the Act. That section is in the following terms:- “If a police officer makes a requisition under subsection (8), (8C) or (9) in relation to a person and the person fails to provide as prescribed in this section:- (a) a specimen of the person’s breath for analysis by a breath analysing instrument; or (b) a specimen of the person’s saliva for saliva analysis; or (c) a specimen of the person’s blood for a laboratory test; each of the following applies – (d) the person is guilty of an offence that is taken to be an offence against the appropriate provision of section 79(1); (e) the person is liable to the same punishment in all respects, including disqualification from holding or obtaining a Queensland driver’s licence, as the person would be if the offence were actually an offence committed by the person against the appropriate provision of s 79(1).”1 It is not disputed in this case that the requisition made by the police officer was one duly made pursuant to the provisions of the legislation. Section 80(8) specifically empowers a police officer to require an appropriate sample from a person “arrested 1 Although they do not appear in reprint number 8 of TORUM (effective 8 July 2007) the words "against the appropriate provision of s 79(1)" where they second appear in s 80(11), i.e. in s 80(11)(e), were inserted by s 57 of the Transport Legislation and Another Act Amendment Act 2007 (assented to 28 February 2007). The 2007 amending act is said to be incorporated in reprint number 7H (effective 1 June 2007). The words however do not appear in that reprint although it is clear that they form part of the section as at the date of the present offence. -- 4 of 9 -- 5 for an offence against section 79”. Counsel for the respondent has argued that the affect of s 80(11) is to “deem” the present appellant to be guilty of an offence of driving a motor vehicle whilst under the influence of liquor or a drug and to be therefore liable to the period of disqualification provided for in s. 86.. [7] The provisions of the TORUM legislation have their origins in the now repealed Traffic Act of 1949. The Traffic Act had long recognised an offence of driving whilst under the influence of liquor or a drug. Prior to 1974, section 16(1) of the Act dealt with that offence in so far as it related to motor vehicles, trams, trains or vessels. Section 16(2) dealt with the equivalent offence in so far as it involved “any horse or other animal or … any vehicle (other than a motor vehicle)”. [8] In 1968, the Traffic Act Amendment Act introduced the so called “breathalyser legislation” in Queensland. A new section 16A(6)(f) established an offence of failing to provide as prescribed a specimen of breath for analysis. The section made provision for the appropriate penalty, including a period of licence disqualification, in the case of such an offence. This provision however was repealed by the Traffic Act Amendment Act 1974 which created a new s 16A and established a “deeming” provision in s 16A(11)(a) in the following terms:- “A person who, upon a requisition duly made by a member of the Police Force under paragraph (a) or paragraph (c) of sub section (8), fails to provide as prescribed a specimen of his breath for analysis or, as the case may be, a specimen of his blood for a laboratory test or a person who, upon a requisition duly made by a member of the Police Force under subsection (9), fails to provide as prescribed a specimen of his blood for a laboratory test is guilty of an offence which shall be deemed to be an offence against sub section (1) of section 16 and the offender is liable to the same punishment in all respects (including disqualification from holding or obtaining a driver’s license) as he would be in the case of the offence being actually one committed by him against the said subsection (1).” [9] The “subsection (1) of section 16” referred to in the new s 16A(11)(a) was also created by the Traffic Act Amendment Act of 1974. That section dealt with the -- 5 of 9 -- 6 offence of driving (or attempting to put in motion or being in charge of) “a motor vehicle, tram, train or vessel”. It replaced the s 16(1) referred to above and appeared in the following form:- “(1)(a) Any person who whilst he is under the influence of liquor or a drug – (i) drives a motor vehicle, tram, train or vessel; (ii) attempts to put in motion a motor vehicle, tram, train or vessel; or (iii) as in charge of a motor vehicle, tram, train or vessel, is guilty of an offence and is liable to a penalty not exceeding $800 or to imprisonment for a term not exceeding nine months or to both such penalty and imprisonment.” [10] The separate offence relating to animals and other “non” motor vehicles was preserved by the enactment of a new s 16(7). This section, which was identical in terms to the section which it replaced (s 16(2)) provided as follows:- “Any person who whilst he is under the influence of liquor or a drug drives or is in charge of any horse or other animal on a road, or drives or is in charge of any vehicle (other than a motor vehicle) on a road, or attempts to put in motion any vehicle (other than a motor vehicle) on a road, is guilty of an offence.” [11] Under the Traffic Act the term vehicle was defined as follows:- “Vehicle includes any articulated vehicle, barrow, cab, car, carriage, cart, dray, hand cart, lorry, motor vehicle, multi-wheeled vehicle, omnibus, tractor or traction engine, trailer, trolley vehicle, truck, van, velocipede, wagon, or other means of transport or conveyance whatsoever designed for movement upon wheels, whether or not such vehicle is or is not for the time being capable of being operated or used in a normal manner, but does not include a tram or a train.” The term motor vehicle was defined as follows:- “Motor vehicle means any vehicle propelled or designed for propulsion wholly or partially by gas, motor spirit, oil, electricity, steam, or any other mechanical power, and includes an articulated motor vehicle, B-double, moped, motor car, motor cycle, motor omnibus, motor truck, road train, specially constructed vehicle, trolley vehicle, tractor or traction engine, and a trailer attached to or drawn by a motor vehicle.” -- 6 of 9 -- 7 The terms “train”, “tram” and “vessel” were separately defined and the term bicycle was defined as meaning “any vehicle having two wheels and designed for propulsion wholly by human power”. [12] It is clear from these provisions that the riding of a bicycle whilst under the influence of liquor was caught by s 16(7) and it is equally clear that the “deeming” provisions of s 16A(11)(a) applied, expressly, only to those offences contained in s 16(1), that is to offences involving motor vehicles, trams, trains or vessels. [13] Although there were a number of substantial amendments to s 16A between 1975 and 1990 the provisions set out above remained unaffected. The 1993 reprint of the Traffic Act however included a “renumbering” of certain provisions pursuant to s 43(1) of the Reprints Act 1992. Section 16(1)(b) for example now became s 16(1A) and the previously numbered section 16(1)(c) now became s 16(1B). The section that had previously appeared as s 16(1)(a) now appeared as s 16(1)(a) – (c) as follows:- “Any person who whilst under the influence of liquor or a drug:- (a) drives a motor vehicle, tram, train or vessel; or (b) attempts to put in motion a motor vehicle, tram, train or vessel; or (c) is in charge of a motor vehicle, tram, train or vessel; is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding nine months.” [14] Section 16(7), the provision which covered, inter alia, the offence of riding a bicycle whilst affected by an intoxicating substance, remained unaffected by this renumbering. Section 16A(11) however, in an obvious reflection of the renumbering that occurred in s 16(1) now appeared in the following form:- -- 7 of 9 -- 8 “A person who, upon a requisition duly made by a police officer under sub section (8) or (8C), fails to provide as prescribed a specimen of the person’s breath for analysis or, as the case may be a specimen of the person’s blood for a laboratory test or a person who, upon a requisition duly made by a police officer under subsection (9), fails to provide as prescribed a specimen of the person’s blood for a laboratory test is guilty of an offence which shall be deemed to be an offence against the appropriate provision of s 16(1) and the offender is liable to the same punishment in all respects (including disqualification from holding or obtaining a driver’s licence) as the person would be in the case of the offence being actually one committed by the person against the provision.” [15] The insertion of the phrase “against the appropriate provision of s 16(1)” in s 16A(11) and the renumbering of s 16(1) did nothing to change the effect of s 16A(11). To have done so would have been contrary to s (8) of the Reprints Act which prohibits changes to the text of a provision that would change the effect of the provision. Following the renumbering the deeming provision in s 16A(11) continued to apply to those offences previously contained in s 16(1)(a) but which were now renumbered as s 16(1). [16] A consideration of these provisions of the Traffic Act leads to a number of conclusions. Firstly, the definition sections of the Act recognise a distinction between a “bicycle” and “motor vehicle”, and, for that matter, a “tram”, “train” or “vessel”. Secondly, the provision in s 16(1) which created the offence of driving a motor vehicle (or a tram, train or vessel) whilst under the influence of liquor or a drug has always been distinct from the provision which created the offence of riding a bicycle (or horse or animal or other non motor vehicle) whilst under the influence of such a substance. Thirdly, and importantly, the deeming provision of s 16A(11) has always applied only to offences involving motor vehicles, trams, trains or vessels. At no time has it applied to the offence set out in s. 16(7). [17] The Traffic Act 1949 was repealed by s 55 of the Road Transport Reform Act 1999. By virtue of clause 89 of the Schedule to that Act, sections 14A to 23 of the Traffic -- 8 of 9 -- 9 Act were relocated to the Transport Operations (Road Use Management) Act 1995 (‘TORUM’) and renumbered as sections 77 to 91. Sections 16(1) and 16(7) of the Traffic Act became, respectively sections 79(1) and 79(7) of TORUM. The deeming provision that was s 16A(11) of the Traffic Act became, effectively, s 80(11) of TORUM. [18] Section 80(11) of TORUM is set out above. The reference in that section to “the appropriate provision” of s 79(1) makes it clear in my view that the section is intended to apply only to a failure to provide a specimen arising from the driving of a motor vehicle, tram, train or vessel. There is no offence within s 79(1) which is appropriate to the riding of a bicycle. As indicated, whether under the provisions of the TORUM legislation or under the provisions of the Traffic Act, the offence of riding a bicycle whilst affected by an intoxicating substance has always been regarded as an offence quite separate from that of driving a motor vehicle whilst so affected. If the legislature had here intended that s 80(11) should apply to bicycles (or animals) in addition to motor vehicles, trams, trains and vessels, then the section would have referred to s 79 without being limited as it is to s79(1). This in fact is the approach taken elsewhere in the legislation where the intent has been to refer to all offences contained within s 79 and not simply to those created by s. 79(1). See, for example, ss. 80(8), 80(30) and 82. At very least the section could have made reference to s 79(7) in addition to s 79(1). [19] For these reasons I am of the view that in the circumstances of this case the court had no power to order that the appellant should be disqualified from holding or obtaining a driver’s licence. My order therefore is that the appeal should be allowed and the decision of the court below, in so far as it includes an order for such disqualification, should be set aside. -- 9 of 9 --