Parr v Queensland Police Service [2021] QCA 216

SUPREME COURT OF QUEENSLAND

CITATION: Parr v Queensland Police Service [2021] QCA 216

PARTIES: PARR, Anthony Craig / (applicant) / v / QUEENSLAND POLICE SERVICE / (respondent)

FILE NO: CA No 64 of 2021 / DC No 2763 of 2020

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Brisbane – [2021] QDC 73 (Porter QC DCJ)

DELIVERED EX TEMPORE ON: 6 October 2021

DELIVERED AT: Brisbane

HEARING DATE: 6 October 2021

JUDGES: Morrison and Mullins JJA and Boddice J

ORDER: Application for leave to appeal refused.

CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted in the Magistrates Court of one charge of driving a motor vehicle without a driver’s licence disqualified by court order and one charge of safe but otherwise defective vehicle – where the applicant appealed to the District Court – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal from the District Court – whether the applicant has shown that an error was made by the District Court judge / Transport Operations (Road Use Management) Act 1995 (Qld), s 123C / Pickering v McArthur [2005] QCA 294, cited

COUNSEL: The applicant appeared on his own behalf / D Nardone for the respondent

SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent

1. MULLINS JA: Mr Parr was convicted in the Magistrates Court at Brisbane on 28 September 2020 of one charge of driving a motor vehicle without a driver’s licence disqualified by court order and one charge of safe but otherwise defective vehicle. The offences were committed on 14 December 2019. He was fined $700 with convictions recorded and the fine was referred to the State Penalties Enforcement Registry. He was also disqualified from driving for two years.

2. It was not in dispute before the Magistrate that Mr Parr was driving his vehicle at Coorparoo on the morning of 14 December 2019 with a female passenger. Mr Parr and his female passenger gave evidence. He had driven that morning from Haigslea to Burleigh Heads to collect the female passenger and was taking her to attend a hydrotherapy or ice bath session at the time that he was stopped by Senior Constable Holliston for a licence check. The police officer’s check established that Mr Parr was unlicenced. Senior Constable Holliston activated his body worn camera and had a conversation with Mr Parr about his licence. Senior Constable Holliston observed that the vehicle’s tyres were bald with very little tread marks on them.

3. The Magistrate acted on the certificate tendered under s 123C of the Transport Operations (Road Use Management) Act 1995 (Qld) (the TORUM Act) that certified that Mr Parr’s open driver’s licence was not in force on 14 December 2019 and certified that it was cancelled pursuant to s 127 of the TORUM Act on 10 December 2019, but that on 6 January 2020 the disqualification was suspended, pending the determining of Mr Parr’s appeal against the disqualification pursuant to s 131(20) of the TORUM Act. Mr Parr had raised the defence of extraordinary emergency before the Magistrate. The female passenger had given evidence that on the evening of 13 December 2019, she had telephoned Mr Parr when she was in low mood and rather depressed, but she did not give evidence that she was suicidal. The Magistrate accepted that Mr Parr had some caring role for the female passenger and had taken her to hospital on other occasions, but it was not a sudden or extraordinary emergency that required Mr Parr, while unlicensed, to drive her the next day to the hydrotherapy session. The Magistrate accepted the Senior Constable’s evidence that the tyres were bald.

4. Mr Parr appealed those convictions to the District Court on numerous grounds. The learned judge dismissed the appeal on 25 March 2021: Parr v Queensland Police Service [2021] QDC 73 (the reasons).

5. Mr Parr applies for leave to appeal pursuant to s 118 of the District Court of Queensland Act 1967 (Qld) on three grounds:(a)the judge erred in finding Mr Parr was being dishonest and driving without a licence; (b)the judge erred in referring to the judgment of Horneman-Wren SC DCJ that was delivered on 23 March 2020 as that was after the date of the offences; and(c)the judge erred in finding that the Magistrate had done nothing undue and that her rudeness and mean behaviour was professional.

6. Mr Parr appeared for himself before the learned Magistrate and on the appeal to the District Court. He also appears for himself on this application.

7. Mr Parr can succeed on his application for leave to appeal to this Court only if “an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected”: Pickering v McArthur [2005] QCA 294 at [3].

8. In relation to the first ground, the judge had dealt with an argument advanced on appeal that the prosecution had to exclude s 24 of the Criminal Code (Qld) which the judge disposed of at [47]-[48] of the reasons by finding that any mistake was as to the legal effect of the appeal that was subsisting on 14 December 2019 from the refusal of another Magistrate on 8 October 2019 to make the special hardship order (when Mr Parr’s licence had been suspended due to accumulation of demerit points), that was not a mistake that gave rise to a defence under s 24 of the Code and that, even if Mr Parr had a mistaken belief prior to 10 December 2019, on that date he was disqualified by a court order and there were no reasonable grounds for a belief that he was entitled to drive four days later.

9. The first ground relates to the finding that the judge made (at [45] of the reasons) that was qualified by the statement made by the judge that he did not have to decide the question of mistake of fact on whether Mr Parr knew he was driving without a licence, because the matter could be disposed of as set out at [47]-[48] of the reasons. The finding that the judge did not need to make, but which Mr Parr takes issue with on this application, is not that Mr Parr was dishonest, but that Mr Parr “did understand that … the question of whether he had a licence was, at the least, a grey area”. In view of the first ground not being based on an operative finding made by the judge, it does not have any consequence for the outcome of Mr Parr’s application.

10. In relation to the second ground, the learned judge referred to [4] and [5] of the judgment of Horneman-Wren SC DCJ in Parr v Department of Transport and Main Roads [2020] QDC 40 as a convenient summary of the background of Mr Parr’s licence history in relation to the earlier application made by Mr Parr for a special hardship order after his licence had been suspended for accumulation of demerit points. The judge was merely taking a shortcut in referring to the summary of the history. Mr Parr is correct in his contention that Horneman-Wren SC DCJ’s judgment had not been delivered at the time of the offences, but it was the history (and not the judgment itself) to which the judge had regard in dealing with the mistake of fact defence that was raised by Mr Parr before the judge. There is no relevant error made by the judge in taking this shortcut.

11. The third ground arises out of the judge’s conclusion that there was no substance to the grounds grouped under the category of Mr Parr’s being denied natural justice or procedural fairness by the Magistrate and apprehended bias of the Magistrate. The judge reviewed the transcript of an earlier mention of the matter before the Magistrate and the transcript of the hearing before the Magistrate and dealt at length with each of the points raised by Mr Parr at [19]-[33] of the reasons. The judge noted (at [22]) that his Honour was unable to find anything that would justify the conclusion that the Magistrate “had acted in a way that was mean, disrespectful, threatening, condescending, patronising, cruel, arrogant or ignorant of due process”. Mr Parr has a different view to the judge, but that is not what is required on this application to show that it was not open to the judge to conclude as his Honour did. Mr Parr has not shown error in the judge’s rejection of his natural justice grounds.

12. Even though there was not a ground of appeal in relation to the judge’s conclusion that there was no error in the Magistrate’s finding that the defence of extraordinary emergency was excluded beyond reasonable doubt, it was raised by Mr Parr in oral submissions that this aspect of the judge’s decision was also in error. Again, Mr Parr had a different view of the response that was required of him to his female passenger’s welfare, but did not attempt to show the error in the judge’s decision, despite raising it in his argument.

13. Mr Parr’s application for leave to appeal should be refused.

14. MORRISON JA: I agree.

15. BODDICE J: I agree.

16. MORRISON JA: The order of the Court is that the application for leave to appeal is refused.