Jones v Commissioner of Police [2025] QDC 70

[3] No challenge was made to that scheme by Mr Jones, subject to the principle point he made, which I will come to in a moment. While it might be thought in the transcript, he accepted he was driving at 71 in a 60 zone, to be fair to him, he described his position as being that he did not challenge that at the trial.

[4] Mr Jones also did not challenge the operation of the device as he was required to do so by statute prior to the trial. His challenge before the learned magistrate was that the device necessarily failed to record his speed according to law. As I understood his argument from his submissions at trial, and then again from hearing him today, his argument developed in this way.

[5] First, he submitted that Neville Road is not horizontal in the area in which he was detected speeding. He chose to give evidence and did not actually give evidence of that fact in the witness box, but that does not really matter because there is some evidence suggestive of the road being on a slope or on a diagonal in exhibit 1.

[6] Second, he referred to section 35 of the Acts Interpretation Act 1901 (Cth), which provides that in the measurement of any distance for the purposes of any act, that distance shall be measured in a straight line on a horizontal plain.

[7] Third, he submitted that the speed detection device must necessarily have detected his speed by considering time and distance, and that necessarily it did so by reference to a diagonal direction of travel.

[8] Fourth, he submits that by doing so, the speed detection device has purported to determine his distance and, therefore, speed contrary to section 35 of the Commonwealth Act by measuring distance in the diagonal and not on the horizontal plain.

[9] Finally, he submitted that any provision in the state legislation contrary to that Commonwealth Act is constitutionally invalid.

[10] The learned Magistrate rejected that argument primarily for these reasons. He said the Commonwealth Act did not apply to Queensland statutes, although he accepted the Acts Interpretation Act 1954 (Qld) did have a substantially similar provision. He held further that the statutory scheme which underpins the speed camera in this case did not fall within the scope of either provision, because it did not provide in terms for measurement of distance at all. In any event, the statutory provisions permit the tendering of evidentiary certificates as admissible evidence of the offence.

[11] Implicit in his Honour's last proposition is that even if the Acts Interpretation Act provisions apply, they are subject to a contrary intention. He refused the request by Mr Jones to adjourn the trial for, as Mr Jones explained it to me today, the Crown to put on further evidence. He convicted Mr Jones and imposed a fine. He ordered Mr Jones to pay modest court costs and an offender levy was added by force of penalties and sentences regulations under section 179C of the Penalties and Sentences Act 1992.

[12] Mr Jones appealed his conviction and sentence. As to his conviction appeal, he developed the argument in substantially the same way as it was developed before his Honour. I am not persuaded by any of his arguments however, there are two things I was persuaded of.

[13] Firstly, on the evidence at trial, Neville Road appears to be on a slope rather than horizontal. The power poles shown in the photograph tendered demonstrate that.

[14] Secondly, I accept his proposition that the argument he was seeking to advance was not challenging the accuracy of the devices, or their output, which he did not dispute for the purposes of the trial. He was rather submitting that even if they were accurate in measuring his speed on the diagonal, the measurement was constitutionally unlawful because distance had to be measured on the horizontal.

[15] Beyond that, however, his arguments are wrong.

[16] The first proposition I need to deal with is that the Commonwealth Acts Interpretation Act does not on its proper construction apply to state Acts generally, or Queensland legislation in particular.

[17] It is notable that the Commonwealth Acts Interpretation Act does not define 'Act' as an act of the Commonwealth Parliament; however, as a matter of fundamental constitutional principle, it cannot possibly mean anything else. There is no head of power in the Commonwealth Constitution, which gives the Commonwealth Parliament power to legislate for interpretation of statutes passed by a State exercising its constitutionally valid legislative power, and nor could there be.

[18] There was, indeed, in 2011, a proposal to amend the Commonwealth statute to clarify that the Act applies to Commonwealth Acts which may have been proposed for the purpose of avoiding futile arguments of this kind. But the Commonwealth Act does not apply to state legislation and could not.

[19] Next, we turn to the Queensland Acts Interpretation Act. That provides in respect of measurement of distance as follows:

(1) In applying a pre-2023 provision, distance is to be measured along the shortest road ordinarily used for travelling unless there is a contrary intention that distance is to be measured in a straight line on a horizontal plane or in another way.

(2) In applying a post-2023 provision, distance is to be measured in a straight line on a horizontal plane.

post-2023 provision means a provision enacted after the commencement of the Justice and Other Legislation Amendment Act 2023, section 9.

pre-2023 provision means a provision other than a post-2023 provision.

[20] It is uncontentious that the provisions that provide the foundation, both for the offence and for proof of the offence are pre-2023 provisions. Accordingly, section 37(1) applies.

[21] On its proper construction, that subsection is concerned with statutory provisions which expressly provide for a distance. An example of some analogous relevance is Dalagold Pty Ltd v The Chief Executive, a decision of Justice Lee, unreported delivered 2 April 1998. That case is not really relevant here, except that it provides an example of where a statute provides in express terms for a distance; in that case, the distance from a principal licensed premises that a bottle shop could be built. As I say, the facts were a little bit different there.

[22] But to my mind, reading section 37(1) as a whole, it is quite plain that what it contemplates is application where an Act expressly identifies a distance as a relevant factor in a right or liability arising under the Act, and not where distance might be some integer of some calculation of some issue that arises under a statutory provision. And, in my respectful view, section 37(2) falls into exactly the same category, albeit it is not quite as clear as section 37(1) with its reference to measured distance along a shortest road.

[23] There is no part of any statutory provisions under which the offence arose, or under the TORUM Act for facilitating proof of the offence that falls within the scope of section 37(1) of the Queensland Act, or, indeed, in my view, 37(2), or the Commonwealth Act on the construction that I adopt.

[24] That construction must be correct. One of the principles that inform statutory construction is that absurd constructions are to be avoided. It would be absurd to apply this construction to a provision concerned with identifying excessive speed on roads.

[25] In any event, that point really identifies the further difficulty which Mr Jones' argument confronts. That is, both the Commonwealth and State Interpretations Acts apply subject to a contrary intention. It would be hard to see a more compelling contrary intention than the complex and detailed scheme created by Part 7 of the TORUM Act and its related provisions. It creates a self-contained evidence facilitation process for proof of offences by photographic detection devices so long as certain preconditions are met. That is an overwhelmingly compelling contrary intention, even if section 37 of the Queensland Act could somehow be tortured into applying to some statutory provision that arises in this case.

[26] For all those reasons, I am unpersuaded of Mr Jones' submissions on his conviction appeal.

[27] Mr Jones raised three issues in respect of his sentence. The first related to the proposition that, and I am willing to accept this, that the offence notice that he received under the statutory scheme provided for a penalty of an amount less than the amount he was ultimately fined by the magistrate at the trial.

[28] He submitted that that was in some way a breach of the Human Rights Act because it involved an increase in his sentence. He articulates the precise way he reaches that view in his submissions, and I do not need to lay out the detail. That is because it seems to me that his characterisation of what occurred when he received his infringement notice is incorrect. The infringement notice did not impose a penalty which applied for all purposes. It imposed a penalty which arose if you were willing to accept the commission of the offence and pay it, or perhaps if Mr Jones is right about the statutory scheme, if you did not want to actively contest it.

[29] However, as was his right, he elected to take the matter to trial. Once he made that election, the proposed penalty in the infringement notice became irrelevant because he never elected to adopt it. It would be a remarkable thing to construe the statutory scheme in a way that somehow confines the powers of the court on a trial of the complaint and summons where the defendant chooses to contest the matter. And I do not accept the Human Rights Act leads to any different conclusion.

[30] He also raised two other matters. One was that the costs order against him was a further penalty in some way in breach of the Human Rights Act. The difficulty is that that is incorrect as a matter of fundamental law.

[31] A cost order is not punitive. It has never been treated by courts as punitive, even when indemnity costs are ordered. Cost orders are compensatory to address the loss of the successful party, or the costs of the successful party in bringing the proceedings. There is no reason why they should not be characterised in that way in respect of the Justices Act 1886, which authorises the imposition of costs in Justices Act litigation.

[32] That is also an answer to Mr Jones' reliance on High Court authorities about the power to award costs in criminal proceedings. Indeed, the reality is that in the absence of an expressed statutory provision, there is no power for any court to order costs; however, there is a statutory provision in the Justices Act to make cost orders and they are compensatory not penal in nature.

[33] That leaves Mr Jones' complaint about the offender levy. I frankly admit the offender levy was a new thing to me. It is a levy that is imposed when a person is sentenced under section 179C of the Penalties and Sentences Act and the related Regulations.

[34] It is not a large amount of money, but not nothing. Mr Jones told me it was a hundred and fifty dollars. I accept that from him. He sought to characterise that as extra judicial punishment. The difficulty with that characterisation is that there can be extra judicial punishment. The State Parliament has legislative power to legislate for the penalty of an offence. Mandatory sentencing is one example. Automatic loss of points raised by Mr Jones is another example. I can see no basis to question the power of the State legislature in general terms to legislate in that way. So even if the offender levy was an additional amount added to the sentence, I cannot see why it would be invalid.

[35] In any event, it is declared by Parliament not to be a sentence or a punishment. It can be characterised as neither in a sensible way. It seems to me that it is concerned, given that it is imposed on sentence, where persons have either pleaded guilty or been found guilty and is concerned with the costs of maintaining the justice system in which the person was sentenced.

[36] For all those reasons, notwithstanding the diligence of his research and the courtesy of his presentation, I am unpersuaded either that the conviction should be set aside or that the sentence appeal has been made out, and so I dismiss the appeal.