Parr v Queensland Police Service [2025] QDC 106

• [8] This appeal is brought pursuant to s 222 of the Justices Act 1886. The principles applicable to a s 222 appeal are clear. These appeals occur by way of rehearing on the original evidence pursuant to s 223 of the Justices Act 1886. However, upon application under s 223(2), the court may give leave to adduce fresh, additional or substituted evidence, should there be special grounds to warrant doing so. A s 222 appeal requires this Court to conduct a real review of the proceeding below, the reasons and reach its own conclusions as to the issues from the evidence, giving due deference to the learned Magistrate's reasons.
• [9] In Forrest v Commissioner of Police, the Court of Appeal (Sofronoff P, with whom Gotterson and Morrison JJA agreed) described this kind of appeal process as follows:

"It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal."

• [10] In his written submissions, the appellant submits that he was not allowed to present a closing argument.
• [11] In my assessment, this is plainly incorrect. At the conclusion of the respondent's closing address, the learned Magistrate said the following:

"Now, Mr Parr, is there anything, sir, that you wish to say to the court in closing with reference to the evidence before the court?"

• [12] The appellant proceeded to raise unrelated court matters and tendered further documents. Whilst the appellant was encouraged to "come back on track" by the learned Magistrate, I do not consider that he was not provided the opportunity to make closing submissions. When the learned Magistrate indicated she would move to her decision, the appellant did not express any desire to make further submissions at that time.
• [13] For the reasons I have just expressed, I am satisfied that the learned Magistrate did provide ample opportunity for the appellant to make closing submissions.
• [14] Thus, Ground 1 must fail.

Did the learned Magistrate err in rejecting the appellant's submission at trial that an appeal was on foot?

• [15] During the trial, the appellant did not produce a notice of appeal concerning the Beaudesert Disqualification. He did not produce any documentary evidence to indicate that an appeal was on foot. He did, however, give oral evidence that he had commenced an appeal.
• [16] In her decision, the learned Magistrate pointed to the absence of the notice of appeal and documentary evidence in rejecting the appellant's evidence that an appeal was pending determination. I respectfully consider that the learned Magistrate did not provide sufficient reasons for rejecting the appellant's oral evidence as to this, particularly given he was self-represented.
• [17] Realistically, the Crown should have provided more assistance to the learned Magistrate. The Crown ought to have requested an adjournment to query the status of the purported appeal. Surprisingly, it was not put to the appellant in cross-examination that the notice of appeal had not been filed. Instead, questions were merely asked confirming that the appellant did not have the documents with him, but nonetheless, intended to submit that the disqualification was stayed because of the appeal. The QPS made no investigations and, in closing submissions, erroneously submitted that there was no evidence to indicate that an appeal was on foot. There was, of course, the appellant's evidence as to this. Examples of the evidence are these:
  • In cross-examination of the appellant, the QPS asked the appellant to recall the Beaudesert Disqualification and the imposition of a three-year disqualification. The appellant said "that is another little mistake that has happened in your certificate. You've imposed that. But that matter is still to be heard. That's what I was trying to explain on the 29th. See, that was supposed - it still hasn't been heard."
  • Shortly after that, the QPS asked the appellant when the notice of appeal against the Beaudesert Disqualification was filed. He responded "I can't give you the exact date but I knew - I knew I was waiting on their outline of argument on the 27th of September. I hadn't received it. So it must be, like, six weeks or it's 30 days I filed before that."
  • Still in cross-examination, the prosecutor said "Putting aside what you think of how the magistrate treated you, a court said 'No driving for three years' Do you accept that" to which the appellant responded "I - I - I'm appealing her decision."
• [18] Ultimately, I am satisfied that it was an error to reject the appellant's oral evidence regarding the existence of the appeal proceedings at least without explaining why it was appropriate to disregard his oral evidence. It was unfortunate that the QPS led her Honour into error by making the erroneous submission that was made. It is concerning that paragraph 7.6 of the respondent's outline, even on this appeal, maintains this: "Importantly, there was no evidence before the learned Magistrate of the appeal." That is not only plainly wrong, it is simply not a submission that it was open to make. And that is especially so now when it is known that there was, in fact, an appeal. It should be noted that submission was not maintained by Mr Roebuck-Eyles, who appeared for the respondent today.

Did the learned Magistrate err in convicting the appellant?

• [19] The appellant submits that at the time of the offending, the Beaudesert Disqualification was subject to appeal and thus, suspended. Accordingly, the appellant submits the learned Magistrate erred in placing weight on the Beaudesert Disqualification to determine the conviction. I have already concluded that it was an error to reject his evidence and proceed on this basis. Having found that the learned Magistrate has erred in fact, I am required to independently scrutinise the evidence and reach my own finding as to the facts.[1]
• [20] Section 131 of the Transport Operations (Road Use Management Act) 1995 governs reviews and appeals with respect to the issue of licences. Relevantly, section 131(20) provides:

Where a person has, following upon a conviction, been disqualified from holding or obtaining a Queensland driver licence and has commenced an appeal against that conviction, that disqualification shall, upon the commencement of that appeal, and without further order in that behalf, be suspended pending the determination of that appeal.

• [21] It is now not contested by the QPS that the Beaudesert Disqualification was suspended at the time of the alleged offending. On the facts before the court, I am satisfied that the appellant had appealed the Beaudesert Disqualification such that it was stayed at the time of the proceedings.
• [22] The respondent contends that irrespective of such error, this appeal ought to be dismissed as on the whole of the evidence, the appellant can be found guilty of s 78 of the Transport Operations (Road Use Management Act) 1995 by virtue of the Toowoomba Disqualification. On the appellant's evidence at trial, this disqualification was not challenged and was thus, operational, it would seem, at the time of the alleged offending. Nevertheless, I must consider whether, in weighing the evidence before the court, the appellant may be properly convicted of a charge of driving while disqualified by a court order, having regard to the requirement that such charge be established beyond reasonable doubt. In my assessment, the evidence cannot substantiate such a conviction.
• [23] To prove the charge, it must be established beyond reasonable doubt that:

(1) He was driving a motor vehicle; and

(2) At the time of the driving, the appellant's licence was disqualified by court order.

• [24] The first element was conceded by the appellant at trial and further established by CCTV footage.
• [25] The second element is more contentious. The QPS relied on a Certificate of Evidence from the Queensland Department of Transport and Main Roads which was produced on 29 December 2023. This is the typical means by which proof of the relevant matters underlying the elements of the charge is normally undertaken. That certificate reflected that as at 17 September 2023, the appellant did not have an in force drivers licence. It further and incorrectly referred to the Beaudesert Disqualification as being operational at the time of the alleged offending, and by doing so, it purported to identify why it was that there was not an in-force drivers licence. The Certificate did not at all mention the Toowoomba Disqualification. The reason offered in the certificate for the conclusionary statement as to the appellant not having an in-force driver's licence was clearly erroneous.
• [26] The Certificate was produced pursuant to s 123C, schedule 1 and s 124 of the Transport Operations (Road Use Management Act 1995. Relevantly, s 123C provides that a certificate of this nature, stating a matter mentioned in column 1 of schedule 1, is evidence of the matter stated in the certificate. The second column of schedule 1 identifies the person who is able to attest to the particular matter. Relevantly, that is the chief executive or the commissioner in respect of item 7, being particulars of a specified disqualification.
• [27] It follows that in s 124, that a document purporting to be signed by the chief executive, stating that there was not an in-force licence under the Act shall, upon being produced in evidence and in the absence of evidence in rebuttal, be conclusive evidence of such matters. The difficulty with the certificate here is it was wholly erroneous in the way in which it tied the supposed Beaudesert Disqualification to the statement in item 1.
• [28] Assessing the certificate produced, I consider that conclusive evidence of the Toowoomba Disqualification was not produced at trial. In my assessment, there was not sufficient evidence having regard to the standard of proof before the court to convict the appellant of s 78 of the Transport Operations (Road Use Management Act) 1995.
• [29] Having reached this conclusion, the appeal must be allowed, and the conviction set aside. I would remit the case to the Magistrates Court for retrial.

[1] Bode v Commissioner of Police [2018] QCA 186 [42].