News - Is there any such thing as a "traffic conviction"?

Background

The applicant in the matter of Parker v Commissioner of Police [2016] QDC 354 had been sentenced in the Magistrates Court in relation to dangerously operating a motor vehicle.[1]

The learned Magistrate had made orders in these terms:

So in all those circumstances I’m satisfied I can deal with you by way of a fine.  You’re convicted and fined $1,800.  I order that be referred to SPER if you haven’t paid it within two months.  A traffic conviction’s recorded and you’re disqualified from holding or obtaining a driver’s licence for six months from today.[2]

The applicant became aware that a criminal conviction had been recorded when she applied for a job the following year.[3]

The appeal

On appeal, the applicant complained that she was given to understand that only a ‘traffic conviction’ was recorded.[4]

His Honour Long SC DCJ said:

… as will be seen, from a point of view of legal efficacy, the reference to a traffic conviction, is legally meaningless…[5]

His Honour unpacks that statement by making the following points:

  • Section 3(1) of the Criminal Code provides for only two types of offences.  That is, criminal offences and regulatory offences.[6]
  • Pursuant to ss 3(2) and 3(3) of the Criminal Code, criminal offences are either indictable offences (further divided into crimes and misdemeanours) or simple offences.[7]
  • Section 12 of the Penalties and Sentences Act 1992 (Qld) is concerned with whether or not a conviction is recorded for a criminal or regulatory offence.[8]
  • The term “traffic history” is defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM”) to include: (a) contraventions under the TORUM itself; (b) Dangerous Operation of Motor Vehicle charges; (c) contraventions under the Heavy Vehicle National Law; or (d) evade police charges under the Police Powers and Responsibilities Act (Qld).[9]

As such, a “traffic history” would consist predominately of simple offences, but it would also include the indictable offence of Dangerous Operation of a Motor Vehicle.  That is to say, it would consist of “criminal offences” both simple and indictable.

In relation to the term “traffic offences”, His Honour said:

… there is no such category at law and that nomenclature can only have meaning as a reference to those offences that are compiled for the purposes of subsequent reference, only in a person’s traffic history.[10]

In relation to the learned Magistrate’s statement that “[a] traffic conviction’s recorded,” His Honour said:

There can be no other conclusion other than an implication that the sentencing magistrate  has proceeded upon a false premise, that the recording of a conviction for this offence would be of some limited effect, rather than a correct appreciation that the exercise of discretion, pursuant to s 12 of the PSA, is as to whether or not a conviction for a criminal offence is to be recorded, irrespectively as to the form in which information as to any recorded conviction is kept and disseminated.[11]

Conclusion

So, if a traffic history is simply a term for the separate administrative collation of offences that are actually properly described as criminal offences.  And, if there is no such thing as a “conviction for a traffic offence” or a “traffic conviction”.  Then, shouldn’t a court consider whether or not to record a conviction in the usual fashion?

Courts will routinely not record convictions for low-level first and second drug possessors, but then record “traffic convictions” for people who drive with methylamphetamine or cannabis or MDMA in their saliva. 

Disclosure of such “traffic convictions”, for example, to a potential employer might signal that the person has used illicit drugs, is reckless, is unreliable, and is indifferent to the safety of others.  That would, surely, hamper that person’s economic wellbeing and chances of finding employment. 

 Written by Michael Finch, Senior Associate, Criminal Law Division

email/michael)(oreillystevens.com


[1] Parker v Commissioner of Police [2016] QDC 354, [1].
[2] Ibid [18].
[3] Ibid [3].
[4] Ibid [6].
[5] Ibid [21].
[6] Ibid [24].
[7] Ibid [24].
[8] Ibid [25].
[9] Ibid [28].
[10] Ibid [30].
[11] Ibid [32].