DISTRICT COURT OF QUEENSLAND
CITATION:
Manning v Queensland Police Service [2016] QDC 326
PARTIES:
JOHN FREDERICK MANNING
(Appellant)
and
QUEENSLAND POLICE SERVICE
(Respondent)
FILE NO/S:
DC No 19 of 2015, 20 of 2015
DIVISION:
Appellate
PROCEEDING:
Appeal under s 222 of the Justices Act 1886 (Qld)
ORIGINATING COURT:
Magistrates Court at Bundaberg
DELIVERED ON:
14 December 2016
DELIVERED AT:
District Court at Brisbane
HEARING DATE:
26 August 2016, 1 September 2016, 22 September 2016, 19 October 2016
JUDGE:
Devereaux SC DCJ
ORDER:
Appeal dismissed. I confirm the orders of the Acting Magistrate made on 8 July 2015.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the appellant was convicted, after trial, of two counts of driving while disqualified by court order – where the learned magistrate accepted that the appellant did not believe that he was disqualified when he drove at the times charged – where the appellant submitted that the learned magistrate erred in failing to uphold a defence of mistake of fact – where the appellant further submitted that the acts giving rise to the charge were unwilled acts – where the appellant further submitted that there was a miscarriage of justice because he was not legally represented – whether the appellant’s convictions ought to be set aside.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – where the appellant applied to adduce further evidence going to a defence of unsoundness of mind, not tendered at the original hearing– whether the application to adduce fresh evidence ought to be allowed.
Cases:
Ostrowski v Palmer (2004) 218 CLR 493
Legislation:
Justices Act 1886 (Qld)
Transport Operations (Road Use Management) Act 1995 (Qld)
COUNSEL:
The appellant appeared on his own behalf.
A Stark for the respondent.
SOLICITORS:
The appellant appeared on his own behalf.
ODPP on behalf of the Commissioner of Police for the respondent.
Mr Manning appeals against conviction on two charges of driving while disqualified by court order.
The relevant chronology starts with his being convicted on 14 November 2013 of charges, dated 17 March 2013, of making an unnecessary noise or smoke and of having a safe but otherwise defective vehicle. For those offences he was fined and disqualified from holding or obtaining a drivers licence for three months. He immediately appealed these convictions.
On 23 May 2014, Rackemann DCJ dismissed the appeal and ordered him to pay costs.
Mr Manning was seen driving on 14 and 15 June 2014. He was charged with two counts of driving while disqualified by court order.
The trials proceeded over two days, 19 March and 8 July 2015.
The acting magistrate found Mr Manning guilty of each charge but did not impose punishment other than the mandatory disqualification for two years.
The Trials
The trials of the two charges ran consecutively.
The first prosecution witness was Sergeant Barry John Stevens of the Bundaberg Police Prosecutions. He gave evidence that on 13 June 2014, he rang Mr Manning about an issue and spoke to him on the phone for a couple of minutes. The next day, 14 June, he was driving down Goodwood Road when he saw a truck approaching. It was one of Mr Manning’s removalist trucks, and he could see Mr Manning was the driver of the truck. The next day, a Sunday, back at work, he had cause to bring up Mr Manning’s traffic history. Realising Mr Manning was disqualified, he spoke to his shift supervisor, acting Sergeant Lowth, and asked him to conduct an investigation into the matter with a view to charging Mr Manning with the appropriate offence.
The Sergeant was challenged by Mr Manning during cross-examination (Mr Manning conducted the trial himself) about whether he could correctly identify the driver. The Sergeant was firm that he saw Mr Manning driving. In other evidence, the Sergeant demonstrated that he was personally acquainted with Mr Manning.
Senior Constable Timothy Kitchener James Lowth gave evidence that he knew Mr Manning. He was approached on 14 June 2014 by Sergeant Stevens. His evidence concerned proof that Mr Manning had been disqualified by a court order. Through him, the prosecution tendered a verdict and judgment record containing the results that Mr Manning was disqualified for three months from 14 November 2013.
As the learned acting magistrate later recorded in thorough and expansive reasons for decision, Mr Manning commenced an appeal on the same date and so the disqualification was suspended pending termination of the appeal, pursuant to TORUM Act, s 131(3A). On 23 May 2014, Rackemann DCJ dismissed the appeal with the consequence that the unexpired disqualification took effect pursuant to s 131(3B). Some pages of transcript of the appeal hearing before Rackemann DCJ were tendered and became Exhibit 2.
Exhibit 3, tendered through Officer Lowth, was a certificate from the Department of Transport and Main Roads, under the hand of Bronwyn Richter, Senior Advisor, declaring the disqualification period of three months from 23 May 2014.
Mr Manning cross-examined Officer Lowth to demonstrate that Judge Rackemann’s order did not expressly include an order for the further disqualification of three months.
With the acting magistrate’s assistance, Mr Manning was able to examine Carl Oberhardt, an officer of the court at Bundaberg. Mr Oberhardt said he thought he was present for the decision and just after the decision of Judge Rackemann. He was present when Mr Manning spoke to the prosecutor, appearing for the respondent, Mr Nardone. Mr Oberhardt could not confirm the detail of the discussion between Mr Manning and Mr Nardone, but he recalled that Mr Manning showed Mr Nardone a document and Mr Nardone made a comment.
The trials of the charges under appeal resumed on Wednesday 8 July 2015. Mr Manning gave evidence. He said he did not recall driving the truck on Goodwood Road. He certainly was not pulled over by anyone to do a licence check. He allowed the possibility that the truck was on Goodwood Road, but suggested it could have been another driver.
Primarily, his evidence was to the effect that he was not aware that he was a disqualified driver. He had been disqualified by the magistrate and then lodged an appeal. He said he spoke to an acting magistrate, Neil Lavaring, at the Clerk of the Court’s Office. He handed Mr Lavering the Notice of Appeal, and asked him “whether that reactivates my licence from disqualification.’ He said ‘it does’. I said ‘can I get that it writing’, he said ‘I can’t give it to you in writing.’”
Mr Manning went to the Department of Main Roads at Bundaberg and spoke to a man named Tucker, the Manager of the Department. He told Mr Tucker he had appealed, and asked Mr Tucker whether that would reactivate his licence. Mr Tucker said he would have a look at the Act, and then said “yes, you’re right, it does reactivate your licence.” Mr Manning said he also spoke to someone from the Gladstone Water Police. The next day he spoke to Ms Richters at the Transport Department of Bundaberg. She told him that he was disqualified until 13 or 14 February. Mr Manning said he did not drive once given that information. He also said he telephoned a transport department in Brisbane the day before his disqualification ran out and was told it was still in place. He then gave evidence that he obtained a certificate saying his disqualification period had finished. Apparently he produced that, the transcript records the magistrate saying “I see that.” The document was not exhibited.
When his appeal was dismissed, Mr Manning said, he questioned Judge Rackemann about his disqualification and was told that whatever was done was left in place.[1] Mr Manning later gave evidence that he understood from what the Judge said that his disqualification had occurred after the magistrate’s decision. He said he spoke to Mr Nardone, and showed him the letter he had obtained from the Transport Department on 14 February. He said Mr Nardone told him he could drive, and that Carl, the clerk of the court (a reference to Mr Oberhardt) was there when Mr Nardone told him that.[2]
[1]Transcript 8 July 2015 1-3.40.
[2]Transcript 8 July 2015 1-5.15-30.
In effect, Mr Manning gave evidence that he did not believe he was disqualified when he drove at the times charged. At the end of the examination in chief, the learned acting magistrate summarised the evidence as follows,
“So basically it’s on the basis that you were told by two officials that you had your driver’s licence, which raises an issue to involve officially induced error, which I will get to, probably, later as to whether that’s a defence in Australian law.”[3]
[3]Transcript 8 July 2015 1-6.20.
The second trial proceeded on the afternoon of 8 July 2015. Senior Constable Joshua Ellis gave evidence that on 15 July 2014, he and Officer McNish were in an unmarked patrol car fitted with an in-car video recorder. They saw a green Holden Torana in the business district of Bundaberg going around a round-a-bout. They intercepted it, and Mr Manning was the driver. Officer McNish was called and gave some similar evidence. Mr Manning cross-examined them but did not assert that he was not the driver on this occasion. Timothy Kitchener James Lowth, Senior Constable, gave evidence that on 15 June he was advised that Mr Manning had been taken into custody. He spoke with Mr Manning at the Bundaberg watch house and arrested him for the two charges of disqualified driving. A verdict and judgment record of the earlier charges, which showed the three month disqualification from 14 November 2014 was tendered. Also through this witness, the prosecution tendered the certificate of the Department of Transport and Main Roads, showing that Mr Manning was disqualified for three months effective from 23 May 2014. Mr Manning did not ask the witness any questions.
The acting magistrate gave a lengthy set of reasons examining Australian and international authority on the applicability of the defence of honest and reasonable mistake, provided for in s 24 of the Criminal Code, in cases where a person was misled by advice from a government agency. His Honour referred to Ostrowski v Palmer (2004) 218 CLR 493 as well as Canadian and New Zealand authority and concluded, correctly in my respectful opinion, that the provisions of Chapter 5 of the Criminal Code do not provide for an offence of officially induced error of law.[4]
[4]Reasons for decision 8 July 2015, p 9.25.
The acting magistrate referred to the transcript of the appeal proceeding before Rackemann DCJ. The transcript shows Rackemann DCJ asked Mr Nardone to assist Mr Manning in understanding the position. The acting magistrate seemed simply to accept Mr Manning’s account of his discussion with Mr Nardone – to the effect that Mr Manning showed Mr Nardone the letter and Mr Nardone indicated that he could drive and that he should keep the letter. Nonetheless, while he sympathised with Mr Manning’s position, the learned magistrate said:
“There is no general power of a magistrate to quash a charge properly prepared and declined at trial to proceed merely because I think that the prosecution of the defendant for the offence should not be instituted.”
With respect to the charge dated 14 June 2013, the learned magistrate accepted the evidence of Sergeant Stevens that he saw Mr Manning drive the truck. In my respectful opinion, that finding was open to His Honour and I make the same finding upon my own review of the material. With respect to both charges, there was ultimately no issue that Mr Manning was disqualified.
The learned acting magistrate accepted that Mr Manning believed he was acting reasonably and in accordance with the law.[5] While this was open to the learned magistrate to conclude, in my opinion it was a little generous to Mr Manning. He had earlier given evidence that Mr Lavaring told him that the filing of the appeal re-activated his licence. He also said a manager from the Department of Main Roads told him the same thing. The letter produced by Ms Richters was obviously in error and inconsistent with what he had earlier been told. This should have put Mr Manning on notice. Nonetheless, he said he made further inquiries and was told his licence was, at that stage, suspended.
[5]Reasons for decision 8 July 2015, p 16.45.
Upon convicting, as I have said, the learned acting magistrate did not impose punishment other than the mandatory disqualification.
The charges were brought under s 78 of the Transport Operations (Road Use Management) Act 1995. It provides that a person must not drive a motor vehicle on a road unless the person holds a driver’s licence authorising the person to drive a vehicle on the road. Subsection 78(3) requires that where the convicted person committed the offence while disqualified by a court order, the court must disqualify the person from holding or obtaining a licence for a period of at least two years but not more than five years.
The learned magistrate was powerless to do other than impose the period for disqualification. This court is in the same position.
The grounds of appeal
The grounds of appeal are that:
a. The verdict of the magistrate was unreasonable;
b. The verdict of the magistrate was unjust;
c. A verdict of not guilty should have been entered;
d. The magistrate erred by failing to uphold a defence of mistake;
e. There was a substantial miscarriage of justice;
f. There was a serious error of judgment.
In his written outline Mr Manning argues:
· It was wrong for the learned magistrate to convict him of the charges while accepting his evidence as to his belief that he was lawfully entitled to drive;
· Given the learned magistrate accepted his evidence, there should have been a reasonable doubt about whether he was the driver of the truck in the first charge;
· Given he did not drive for three months from the time of his earlier convictions, the requirement that he not drive for three months from the dismissal of his appeal amounted to double punishment, contrary to s. 16 of the Criminal Code;
· A person is not required to know the law perfectly and in this case he was not responsible for his offences, given the appellant’s evidence including the letters from Richter;
· Under Code s. 23, he was not criminally responsible for the acts giving rise to the charges because they were not will acts because he believed on reasonable grounds that his licence was reinstated;
· The result was unreasonable because a restricted licence is not available upon these convictions;
· There was a miscarriage of justice because the appellant did not have legal representation.
In my opinion, none of the grounds of appeal is made out. Mr Manning’s belief that he was entitled to drive was a mistake of law, not a mistake of fact. Even if it was a truly held belief based on incorrect advice from people in government departments it did not amount to an excuse. In the circumstances it was not incongruous of the acting magistrate to believe him but convict. The belief did not render his act of driving an unwilled act. Mr Manning did not clearly deny driving the truck on 14 June 2014 and Sergeant Stevens’ evidence was persuasive. The trial did not miscarry because he was self-represented. He did so with substantial consideration and assistance from the acting magistrate. The evidence proved he drove on the two relevant occasions and that he was disqualified at the time.
The extra material filed before the appeal hearing
After filing his outline of argument, Mr Manning filed two more sets of written submissions and several document styled as affidavits. Some of the documents bear a date stamp, 16 November 2015. The remaining seem to have been filed on 24 November 2015. Much of the material is repetitive, irrelevant and somewhat confused.
One of the documents filed 16 November develops a theory that Sergeant Stevens was fixated or obsessed with Mr Manning and was out to get him. This is said to be demonstrated by Stevens’ conduct, among other things, in another prosecution of Mr Manning and in the fact that Stevens said he was checking through Mr Manning’s traffic record on 15 June 2014. I am not satisfied this material is new and would likely have had any effect on the outcome of the trials.
Another describes officer Lowth going through Mr Manning’s papers at the Bundaberg watchhouse. He accuses Lowth of wrongful act. Mr Manning cross examined Lowth about this at trial. The issue is irrelevant to the appeal.
The next document purports to be a reply to the respondent’s outline. One point made is that the appellant ‘was forced to proceed at trial in which he did at no time enter a plea…’. The issue is couched in an allegation of duress. No miscarriage arose out of the conduct of the trials. I have already noted the care and consideration the acting magistrate gave to Mr Manning, going as far as arranging the witness Oberhardt, a court official, to be called as a witness. There was no doubt about the nature and particulars of each charge.
The same document argues a case for a pardon – referring to the power to pardon reserved by s. 672 of the Code, about which this court can do nothing. The appellant raises again the unwilled act argument; claims a set-off against the prosecution; submits costs could not be ordered against him because there was no contract in place and he was a ward of the state, being in custody; claims that a Crown prosecutor had obtained a psychiatric report which, if released, would have provided defences to him and he deposes to having been admitted to a mental health unit at Bundaberg shortly after the trial and having evidence of unsoundness of mind. He writes that the psychiatric opinion was not adduced at trial by the prosecution because the actor involved wished to see him disqualified from driving.
The first affidavit filed on 24 November 2015 alleges officers involved in the charge dated 15 June 2014 lied about when they first saw Mr Manning. It was and is not in issue that Mr Manning was seen by police and spoken to on 15 June so if the affidavit contains any new evidence, which is not clear, it would not be likely to affect the outcome of the trial and needs no further consideration on appeal.
The next document makes allegations against an officer - that the officer assaulted Mr Manning by snatching his mobile phone from his hand. This document raises nothing of relevance to the appeal.
The final document, another affidavit filed on 24 November 2015, refers to a complaint Mr Manning made to the Ethical Standards Commission about officer Lowth, who was a witness in the trial. The document adds nothing relevant to the appeal record.
The course of the appeal hearing and more material
The appeal came on for hearing before me on 28 August 2016 at Bundaberg. Brief submissions were taken on the substantive issues in the appeal, with the parties relying on their written outlines. Because the material filed in November 2015 contained references to Mr Manning’s mental health and capacity, I adjourned the appeal for mention on 1 September 2016 to allow Mr Manning to present evidence touching on the issue of unsoundness of mind at the time of the offences. Of course, if there was evidence of Mr Manning’s unsoundness of mind at the time of the offending driving – 14 and 15 June 2014 – that evidence would have been available before the trial in the Magistrates Court. Such evidence was, therefore, unlikely to be ‘fresh’, although Mr Manning seemed to suggest there was evidence of his dealings with mental health services after the original hearing. As Mr Manning was not represented by lawyers and because cogent evidence of unsoundness at the time of the alleged offences would have likely affected the outcome of the trial, I considered it proper to allow Mr Manning to investigate and adduce such evidence. Mr Stark, who appeared for the respondent, consented to that course and tendered a psychiatric report which had been prepared for the purposes of District Court proceedings in 2014 in which Mr Manning was convicted of stalking.
In his lengthy report, Dr Robert Moyle, remarked that, despite serious setbacks in his childhood and having an isolative and paranoid personality, Mr Manning created a business for himself at Bundaberg and has worked for years with some success. The report, being focused on a stalking charge and designed to inform a sentencing court on future risk, was not concerned with the offences under appeal. However, the extensive examination, conducted by Dr Moyle in November 2014, did not produce a diagnosis of mental illness.
On 1 September 2016, Mr Manning advised he was in the process of obtaining medical records. He tendered a letter from a Forensic Liaison Officer of the Wide Bay Mental Health, Alcohol and Other Drugs Service. It informed the reader that Mr Manning had attended the Wide Bay Mental Health Service between 27 and 31 July 2015 and between 1 and 4 March 2016 for the purposes of a mental health assessment.
The appeal was listed for mention in Brisbane on 22 September 2016 at which time he was ready for the continued hearing of the appeal.
By 22 September 2016, Mr Manning had obtained Bundaberg Hospital records but had not prepared an outline of argument. The records comprise 105 pages covering a period from late March 2015 to late July 2015. I adjourned the further hearing of what was, in effect, an application to adduce further evidence, to 19 October 2016 at Maroochydore with a timetable for the parties to file outlines.
By 19 October 2016, I heard oral submissions supplementary to written outlines filed according to my earlier directions. The material does not support a potential defence of unsoundness of mind. In the circumstances I will not traverse the materials in any detail. The documents include forms, such as the Recommendation for Assessment form, under s. 13 of the Mental Health Act 2000. The form includes the criteria, for example, “the person is lacking a capacity to be assessed …”, with a clinician’s written remarks under the criterion. Mr Manning’s submissions suggest he has mistakenly read the heading which sets out the assessment criterion as a statement of opinion about him. The content inserted under the headings does not support a finding of unsoundness. As Mr Stark pointed out in his written outline, there are statements to the effect that Mr Manning has presented with a well-documented history of delusional ideas including paranoid delusions.
Mr Manning has not presented any expert opinion evidence that he was of unsound mind at the time of the driving which gave rise to the charges or unfit for the trial that led to the convictions under appeal.
Conclusions
The materials presented to the court, had they been available and adduced at the trial, could have not affected its outcome. The application to adduce further evidence must be declined.
The appeal must be dismissed.
Given Dr Moyle’s remarks, it seems Mr Manning has overcome serious obstacles to be self-employed for a long time. The acting magistrate clearly sympathised with Mr Manning. If in all the circumstances the result, which sees Mr Manning without a licence for two years, seems unreasonable, that is the result of the mandatory sentencing provision.