Cases

Principles applicable to an application for removal of a disqualification from holding or obtaining a driver licence

Drivers licence – Absolute disqualification – Dangerous operation of a vehicle – Application to remove disqualification

Vasey-Frankland v Commissioner of the Queensland Police Service [2017] QDC 232 – 15 September 2017 District Court of Queensland Chowdhury DCJ

Comment: Disqualification removal requires the balancing of the interests of the applicant and the community, having regard to various factors and principles as summarised in the decision of Chowdhury DCJ.
Under s 131(2) of the Transport Operations (Road Use Management) Act 1995:

A person who has been disqualified, by operation of law, from holding or obtaining Queensland driver licence absolutely or for a period of more than 2 years, may, at any time after the expiration of 2 years from the start of the disqualification period, apply for the disqualification to be removed.

Then, under s 131(2C):

Upon hearing any such application … the court may, as is thought proper, having regard to the character of the person disqualified and the person’s conduct subsequent to the order, the nature of the offence, and any other circumstances of the case, either by order remove the disqualification order or refuse the application.

Mr Vasey-Frankland brought such an application. In the course of rejecting the application, Chowdhury DCJ provided a concise and useful summary of the relevant principles. It is as follows:

[7]    In Slivo v Commissioner of Police [[2016] QDC 46] , his Honour Judge Farr SC observed that s 131 of the Act does not create a right for an applicant to have a disqualification removed; it bestows upon a court a discretion to make such an order. His Honour said this at [9]:
"Ultimately the court must be satisfied, on the balance of probabilities, that it is appropriate to dispense with the original judicial officer’s finding that a disqualification was appropriate. That onus of proof is upon the applicant to demonstrate that it is proper to remove the disqualification. If the applicant cannot satisfy the court that it is proper to do so, the application ought to be refused."
[8]    In Johnson v Director of Public Prosecutions (Qld) [2009] QDC 300, his Honour Judge Irwin at page 17 of the judgment said this:
"For completeness, I observe that I do not consider the inconvenience to the applicant and his wife arising from the licence disqualification in his day-to-day life is a factor in favour of removing it. Some level of inconvenience can always be expected to flow from a disqualification. If it did not, a disqualification would not have the essential deterrent effect. However, it is another matter when there is an indication of the potential loss of employment arising from his not holding a driver’s licence."
[9]    In Tabakovic v Commissioner of Police (Qld) [2009] QDC 191, his Honour Judge Robin QC observed that:
"… the section is there serving the useful purpose of providing an inducement to offenders to perform well, in which event there is a reasonable likelihood that they will be given the opportunity to become licensed to drive again – after suffering a sufficiently lengthy deprivation of the ability to drive to satisfy the community’s demand for punishment."
His Honour observed that when an applicant has served a period of imprisonment during the disqualification period, then the disqualification has no actual effect until the offender was back in the community.
[10]    In Morgan v Commissioner of Police (Qld) [2007] QDC 10, his Honour Judge Newton referred to the following observations of Sachs LJ in R v Shirley [1969] 1 WLR 1357; (1969) 53 Cr App R 543 at 1358 (WLR):
"Long periods of disqualification from driving may prove a very severe handicap to a man when he comes out of prison and desires to pursue a different type of life to that which has led him into that prison. Such periods of disqualification may shut out a large sector of employment, especially in certain areas. Moreover, if the length of disqualification is overlong, and amounts to a period such as a decade, the position may well seem hopeless to the man – and that of itself sows the seeds of an incentive to disregard the law on this point. However wrong such an attitude may be, it springs from a human factor which it is wise to take into account."
[11]    After referring to the quote, his Honour Judge Newton said this at [31] of his judgment:
"Ultimately, however, a judgement is required which, in a particular case, balances the interests of the applicant in having his or her licence restored with those of the community in not prematurely sanctioning the right of an offender to resume driving after committing a serious criminal offence which placed in jeopardy the safety of members of that community."

Failing to stop at red or yellow traffic lights: circumstances where trial should have been adjourned for rehearing after an amendment to the charge

Fail to stop at red light – failure to stop for yellow light – amendment of complaint after evidence closed

Stancombe v Commissioner of Police [2017] QDC 276 – 27 October 2017 District Court of Queensland Clare DCJ

Comment: The offence of failing to stop at a yellow light involves an element additional to those of failure to stop at a red light. The elements of a charge of failing to stop at a red signal under s 56 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 are that:

• the traffic lights were showing a red light while the driver was at or approaching them; and
• the driver did not stop at the traffic lights at the point prescribed by s 56.

The elements of a charge of failing to stop at a yellow signal under s 57 are that:

• the traffic lights were showing a yellow light while the driver was at or approaching them; and
• the driver could have stopped safely before reaching the point at which the regulation required the driver to stop; and
• the driver did not stop at the traffic lights at the point prescribed by s 57.

The fundamental difference between the two charges was discussed in Stancombe v Commissioner of Police [2017] QDC 276. In particular, the court highlighted the need to keep in mind that when a charge under s 56 is amended to a charge under s 57 (under s 46 of the Justices Act 1886), the result will usually be that the matter should be adjourned for retrial. As Clare J pointed out, this was because such an application to amend can only be made after all of the evidence has been led. That evidence will usually not have addressed the additional element in s 57. Failure to so adjourn would result in an injustice because there will not have been a proper trial of the charge. The only alternative would be to refuse the application to amend and dismiss the charge.
Her Honour also doubted that an application by a prosecutor to correct the charge to fit the prosecution evidence could amount to “an objection” within the meaning of s 48(1)(d) of the Justices Act 1886. The significance of this, paraphrasing s 48(1)(c), is that if, at the hearing, there is a variance between the complaint and the evidence adduced in support of it then:

(d)    if an objection is taken for any such … variance – the justices shall; or
(e)    if no such objection is taken – the justices may;

order an amendment. Her Honour held that the prosecutor at the trial had been incorrect in submitting to the magistrate that, because s 48(1)(d) applied, there was no discretion in the matter. Her Honour also noted that the power of amendment in either case was limited to what was necessary or desirable in the interests of justice.

Legislation

Drug and Alcohol Treatment Orders and Eligible Offences – Penalties and Sentences (Drug and Alcohol Treatment Orders) and Other Legislation Amendment Act 2017

Commencement: 29 January 2018
Comment: On 29 January 2018, the new Pt 8A of the Penalties and Sentences Act 1992 came into force. It provides for drug and alcohol treatment orders. The relevant sections are ss 151B–151ZD . The scheme applies in relation to eligible offences. These are summary offences and indictable offences dealt with summarily. Drink and drug driving offences are summary offences. Indictable offences which may be dealt with summarily in some circumstances include the dangerous operation of a vehicle and the unlawful use of a vehicle (Criminal Code ss 328A and 408A  respectively). However, a drug and alcohol treatment order can only be made in cases where the offender suffers from a severe substance use disorder which has contributed to the commission of the offence. For the purposes of the scheme, a severe substance use disorder is defined to be a disorder prescribed by a regulation or if not so prescribed, as being a substance use disorder estimated to be severe under the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSMV) as published by the American Psychiatric Association in 2013. At this stage, there are no regulations prescribing disorders. The scheme presently operates only in the Brisbane Central Magistrates Court. The circumstances in which a drug and alcohol treatment order might be appropriate in a motor vehicle case are probably quite limited. Even so, practitioners should be alert to their possibilities in a proper case.

Provisions for special event traffic controllers, and the waiver of logbook exemption fees in some indigenous communities – Transport and Other Legislation Amendment Regulation (No 1) 2017

Commencement: 25 August 2017
Comment: This regulation is relevantly made under the Transport Operation (Road Use Management) Act 1995. Among a suite of amendments, the following new provisions have been included:
•    A new s 126A in the Transport Operations (Road Use Management – Accreditations and Other Provisions) Regulation 2015 deals with traffic control for special events. It provides for special event traffic controllers and the non-application of ss 54 and 55  to them in certain circumstances. See also the amendment, by s 15 , of s 304 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009. Section 304 deals with directions by police officers and traffic controllers.
•    A new s 161B in the Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 enabling the chief executive to waive the fee for an application for an exemption from the log book requirements in particular circumstances eg where the applicant lives in a community visited by the Indigenous Driver Licensing Unit.

Operational and licensing rules for taxis and similar services revamped as part of personalised transport reform – Transport and Other Legislation (Personalised Transport Reform) Amendment Regulation (No 2) 2017

Commencement: Various but in relation to amendments to the Transport Operations (Passenger Transport) Regulation 2005 – 11 August 2017, 1 September 2017, 1 October 2017 and 1 December 2017
Comment: This regulation is relevantly made under the Motor Accident Insurance Act 1994, the Transport Operations (Passenger Transport) Act 1994 and the Transport Operation (Road Use Management) Act 1995. It contains a wide range of amendments to various regulations. The most significant are those made to the Transport Operations (Passenger Transport) Regulation 2005. Among many other amendments, they include:

• A new Part 6 (ss 52–78) dealing with the day to day operation of taxis.
• A new Part 7 (ss 97–117DT) replacing the old Pts 7 and 7A and dealing with licences and authorisations for personalised transport services.

New Regulations in relation to road traffic over level crossings and other railway infrastructure; also exemptions where oversize vehicles or loads involved – Transport Infrastructure (Rail) Regulation 2017

Commencement: 18 August 2017 and 1 September 2017
Comment: This regulation is relevantly made under the Transport Infrastructure Act 1994. For the most part, the Regulation deals with behaviour on trains and on or about railways. However, Pt 5 deals with the use of motor vehicles in the vicinity of railways. A person must not use a vehicle in a way likely to damage or obstruct a railway (s 24). Neither must a person drive a vehicle (other than a wheel chair) on a pedestrian bridge or platform or in a pedestrian subway on a railway (s 25). Section 26 deals with driving on railway owned roads. Sections 27–30 impose restrictions on driving heavy, high, long or wide vehicles over level crossings. There are various issues in play. Heavy vehicles might damage the railway tracks. High vehicles might foul the 25 kV traction catenaries on electrified lines. Long vehicles may bottom out and become stuck on the crossing. Wide vehicles may damage structures at the crossing. These regulations need to be considered against a background of level crossings being essentially ungated or, at best, protected by half barriers. Any road vehicle which is fouling a level crossing presents obvious dangers to fast moving or heavy trains which have prolonged braking distances. Level crossing collisions remain a significant risk. Each of the regulations creates an offence. However, a railway manager may give permission to act contrary to ss 26–30 (see s 31). The permission may be subject to conditions (ss 32 and 33). This accommodates the not uncommon situation that an outsize load (eg a removal house or an electrical machine) needs to be taken over a level crossing.

Regulations renewed concerning types of vehicle which can be taken onto motorways and State-controlled roads – Transport Infrastructure (State-controlled Roads) Regulation 2017

Commencement: 25 August 2017 and 1 September 2017
Comment: This regulation is relevantly made under the Transport Infrastructure Act 1994. It is concerned with certain kinds of traffic on and activities near motorways and other State-controlled roads. The chief executive is given power to prohibit access by all traffic to a motorway from a road and to prohibit particular types of traffic on motorways (ss 4 and 6). The chief executive may also prohibit access to a State-controlled road under construction or repair (s 5). Section 7 enables the chief executive to prohibit the presence of animals on State-controlled roads. This is subject to exceptions in favour of, for example, dogs on leashes, cattle travelling under permit on a stock route. It is an offence to breach any of these prohibitions without the permission of the chief executive (s 8). Animals are generally barred from motorways (s 9).
Section 10 deals with camping on or near State-controlled roads. It creates a series of offences relating to camping where “conspicuous” signs prohibit or regulate the practice. There are many circumstances in which people may camp on such roads. The two principal ones seem to be truck drivers taking mandatory rest breaks and tourists parking their motor homes overnight. The latter are probably the main object of the regulation.
Other provisions deal with various types of roadworks.