Bell v Commissioner of Police [2008] QDC 48

DISTRICT COURT OF QUEENSLAND CITATION: Bell v Commissioner of Police [2008] QDC 48 PARTIES: ANTHONY STEVEN BELL (Appellant) COMMISSIONER OF POLICE (Respondent) FILE NO/S: 12/07 DIVISION: Criminal PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Ipswich DELIVERED ON: 19 March 2008 DELIVERED AT: Ipswich HEARING DATE: 19 March 2008 JUDGE: Koppenol DCJ ORDER: 1. Appeal dismissed. 2. No order as to costs. CATCHWORDS: APPEAL - CONVICTION FOR DISQUALIFIED DRIVING - DRIVING MOTOR VEHICLE ON DRIVEWAY – whether statutory definition of “road” includes driveway. Justices Act 1886, s 222 Transport Operations (Road Use Management) Act 1995, sched 4 Hodgson v Turner [1998] 2 QdR 368 (CA) applied COUNSEL: I. Rose for the appellant R. Carlos for the respondent SOLICITORS: Aboriginal & Torres Strait Islander Legal Service for the appellant Director of Public Prosecutions for the respondent [1] This is an appeal against the decision of a learned magistrate made on 17 August 2007.1 The appellant was charged with driving a motor vehicle on a road whilst disqualified. He reversed his car from his residential property across the driveway which abutted the road. The learned magistrate found that under the relevant 1 Justices Act 1886, s 222. -- 1 of 2 -- 2 legislation,2 the driveway could be regarded as a road. Consequently, the appellant was convicted, fined and had his driver’s licence further disqualified. [2] The only issue on this appeal is whether the learned magistrate was correct in regarding a driveway as a road. Schedule 4 of the Transport Operations (Road Use Management) Act 1995 relevantly defines the term “road” as follows: “road— (a) … (b) includes an area that is— (i) open to or used by the public and is developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or (ii) dedicated to public use as a road; but (c) does not include an area declared under a regulation not to be a road. Example of an area that is a road— a bridge, cattle grid, culvert, ferry, ford, railway crossing, shopping centre car park, tunnel or viaduct. ” [3] Mr Rose of counsel for the appellant submitted that the statutory definition should be read such that it would be applied only if the public could move vehicles along the road to a destination. That would mean that a driveway to a private residence would not be a road because the public do not have access to that residence. Such an argument was advanced and rejected by the Court of Appeal in Hodgson v Turner [1998] 2 QdR 368, albeit under the slightly different statutory definition used in the Traffic Act 1949, 3 essentially because as Thomas J said at 372: “The inclusive definition used extended the concept of a road beyond what might arguably have been the common understanding of that term.” [4] It follows that if the common understanding of the meaning of “road” means places resorted to by the public for the purpose of passage from one place to another,4 the use of an inclusive definition such as that used in paragraph (b)(1) of the definition may extend the concept to whatever additional places or areas are chosen by Parliament for that purpose. [5] Paragraph (b)(1) provides that a road includes an area that is open to, or used by, the public or has as one of its uses, the driving of motor vehicles. On any view, a driveway across a suburban footpath falls within that extended definition: it is an area of land that the public may use to walk across; it is also an area of land which has, as one of its uses, the driving of motor vehicles. [6] In my opinion, the learned magistrate correctly interpreted and applied the statutory definition of “road” to the driveway concerned. Accordingly, the appeal is dismissed. As the successful respondent did not seek costs, there will be no order as to costs. 2 Transport Operations (Road Use Management) Act 1995, sched 4. 3 The Traffic Act 1949 proscribed careless driving “on a road” (which was defined to include various public ways) “or elsewhere.” The Court of Appeal rejected the argument that the words “or elsewhere” should be read down so as to be confined to public places. 4 A proposition which I accept: see Macquarie Dictionary, 3 rd ed (1998), pp 1836-7; Butterworths Australian Legal Dictionary (1997), p 1036. -- 2 of 2 --