Davis v Commissioner of Police [2022] QDC 244

DISTRICT COURT OF QUEENSLAND CITATION: Davis v Commissioner of Police [2022] QDC 244 PARTIES: ELI JOHN GEORGE DAVIS (Appellant) v COMMISSIONER OF POLICE (Respondent) FILE NO: 14/22 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Beaudesert Magistrates Court DELIVERED ON: Orders made 13 October 2022 in Beenleigh District Court. Reasons delivered 4 November 2022. DELIVERED AT: Brisbane HEARING DATE: 13 October 2022 JUDGE: Byrne KC DCJ ORDER: 1. Appeal allowed. 2. Set aside the order of the Beaudesert Magistrates Court made 12 May 2022 convicting the appellant of the offence of “evasion offence” pursuant to section 754 of the Police Powers and Responsibilities Act 2000. 3. In its stead, a verdict of acquittal is entered in respect of that charge only. 4. No order as to costs. CATCHWORDS: APPEALS – s 222 Justices Act 1886 – appeal against conviction – where the defendant pleaded not guilty to two offences including an evasion offence under s 754 Police Powers and Responsibilities Act 2000 – where it was determined that the activation of warning lights on a police vehicle without an alarm amounted to a direction to stop under s 748 – where the appellant argues that a direction to stop requires the activation of both warning lights and an alarm – -- 1 of 8 -- 2 where the respondent submits that the matter should be remitted to the Magistrates Court for hearing or that this Court make findings that warning lights and alarm were activated and uphold the applicant’s conviction LEGISLATION: Penalties and Sentences Act 1992 (Qld) Police Powers and Responsibilities Act 2000 (Qld) CASES: Cronin v Commissioner of Police [2016] QDC 63 Davies v Commissioner of Police [2018] QDC 201 Fox v Percy (2003) 214 CLR 118 R v Bennetts [2018] QCA 99 R v Kay [2017] 2 Qd R 522 R v O’Dempsey [2018] QCA 364 COUNSEL: Mr. D. Hans (sol) for the appellant (pro bono) Ms. A. Black (sol) for the respondent SOLICITORS: Hans Legal for the appellant (pro bono) Office of the Director of Public Prosecutions for the respondent. Introduction [1] On 12 May 2022 the appellant was convicted after trial of one charge of “evasion offence” pursuant to s 754 of the Police Powers and Responsibilities Act 2000 (“PPRA”) and one charge of unlicenced driving. He appealed against his conviction on the former offence, but not the latter. [2] On 13 October 2022 I allowed the appeal and quashed the conviction for that offence. These are my reasons for doing so. Facts [3] The manner in which a motor vehicle was being driven in the early hours of 13 November 2021 at Logan Village attracted police attention. Although it was an issue at first instance, the decision not to appeal the conviction for unlicensed driving means that it can be accepted for present purposes that the appellant was the driver. [4] The appellant’s vehicle stopped at an intersection in obedience to a displayed red- arrow signal. The police vehicle was positioned behind it. When the arrow turned green, the appellant drove off. The police vehicle followed, but there was a divergence in aspects of the evidence of the two police officers inside that vehicle as to what occurred as it followed. -- 2 of 8 -- 3 [5] The driver of the vehicle, Constable Allen, testified that she activated the flashing lights on the vehicle, and she initially testified she also activated the vehicle’s siren. However, after being taken to some contemporaneously prepared documents, she ultimately accepted that the siren had not been activated on the vehicle.1 [6] The passenger in the police vehicle, Constable Black, was steadfast in his account that both lights and the siren had been activated. He however accepted that the first time that he had to cast his mind to the particular facts and sequences of events after the morning of 13 November 2021 was on 1 April 2022 when he prepared his statement. [7] Although other evidence was adduced at the hearing below, none is relevant for the purposes of this appeal. The legislation [8] Section 754 of the PPRA is the offence provision and relevantly, for present purposes, provides: “754 Evasion offence (1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving. (2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. Minimum penalty—50 penalty units or 50 days imprisonment served wholly in a corrective services facility. Maximum penalty—200 penalty units or 3 years imprisonment. (3) If a court convicts a person of an offence against subsection (2), the court, whether or not any other sentence is imposed, must disqualify the person from holding or obtaining a Queensland driver licence for 2 years.” [9] It can be seen that in order for the offence under s. 754(2) to apply, there must have been a direction given, as required by s. 754(1). Section 748 relevantly provides: “748 Giving a direction for ch 22 (1) For this chapter, a police officer gives a direction to the driver of another motor vehicle if— 1 TS1-25, l 1. -- 3 of 8 -- 4 (a) the police officer is in or on a police service motor vehicle that is being used to attempt to intercept the motor vehicle the driver is driving; and (b) the driver of the police service motor vehicle brings that motor vehicle to a position in relation to the other motor vehicle where the driver or another police officer in or on the police service motor vehicle can give the driver of the other motor vehicle a direction to stop the other motor vehicle; and (c) the police officer signals to the driver of the other motor vehicle to stop the motor vehicle— (i) by giving a physical or audible signal; or (ii) by displaying a warning light or warning lights and sounding an alarm. (2) For subsection (1), a police officer gives a direction to the driver of a motor vehicle when whichever of the following first happens— (a) the police officer gives a physical or audible signal to the driver of the motor vehicle; (b) the police officer displays the warning lights and sounds an alarm fitted to the police service motor vehicle being used to attempt to intercept the motor vehicle.” [10] In the circumstances of this appeal, there is no issue that the requirements of ss. 748(1)(a) and (b) were proven. What is in issue is the meaning of ss. 748(1)(c) and 748(2). [11] The term “alarm” is defined for the purposes of ss. 748(1)(c)(ii) and 748(2)(b) in s. 747. It provides: “alarm includes a horn, a siren and another audible warning device.” [12] There is no issue that the lights described as being activated amounted to “warning lights” for the purposes of these provisions, and so that legislative definition need not be extracted. The ruling [13] Her Honour delivered ex tempore reasons. In so far as is relevant to the issues on this appeal, she found: (i) Only the flashing lights were activated on the police vehicle; -- 4 of 8 -- 5 (ii) The activation of the lights amounts to the giving of a physical signal for the purposes of s 748(1)(c)(i) PPRA because it caused a perception through the senses as opposed to being perceived through the mind; and (iii) A reasonable person in the position of the appellant would, in the circumstances, which included the activation of the police vehicle’s flashing lights, have stopped the vehicle, but the defendant did not. [14] It was in the context of the latter finding that her Honour referred to Cronin v Commissioner of Police2 and considered it was not inconsistent with her findings. The parties’ arguments [15] In essence the appellant accepts that, apart from the present legislative context, the activation of the flashing lights on the police vehicle is capable of amounting to the giving of a physical direction, but argues that it must be accompanying by the sounding of an alarm, as defined, if the prosecution is to prove there had been the giving of a direction to the driver of the other vehicle under s 748 of the PPRA. That is, in order to prove the applicability of s 754 of the PPRA, it must be proven that both warning lights and an “alarm” were activated. For that reason, it is argued that the conviction on that offence cannot be maintained, given the findings of fact as to the activation only of the flashing lights, and so a verdict of acquittal should be entered. [16] The respondent appropriately concedes that the Magistrate erred in her statutory interpretation concerning ss. 748(1)(c) and 748(2) of the PPRA. However, it is argued that her Honour in fact should have found that the siren was also activated, or that at least her reasons for finding that only the warning lights were activated were inadequate. Accordingly, it is argued, the matter should be remitted to the Magistrate’s Court for a rehearing, or in the alternative this court should substitute a finding of fact that the siren was activated and uphold the conviction. That argument is unsustainable for the reasons that follow. Reasons [17] It is convenient to consider the respondent’s submissions first. In delivering her reasons, the Magistrate summarised the evidence of the two police officers as to whether a siren was activated as well as the vehicle’s warning lights. She then stated her conclusion that the lights only were activated. [18] While it would obviously have been desirable for some express explanation as to how that conclusion was reached, I do not accept that the failure to do so in the circumstances of this matter amounts to an error of law. [19] There is no precise test to apply to determine the adequacy of reasons given, except to say that they must be adequate to serve the purposes for which they are required,3 2 [2016] QDC 63. 3 R v Kay [2017] 2 Qd R 522, [34]. -- 5 of 8 -- 6 and one of the reasons they are required is to allow the parties to understand why the litigation has been finalised as it was.4 [20] In this case, the fact that the conclusion follows so closely after recitation of the evidence of the two witnesses, including the different quality of the two accounts based on the making, or otherwise, of contemporaneous notes means that, in my view, sufficient reasoning is revealed for the crucial finding of fact. [21] If I am wrong about that, the respondent would need to show that either remittal to the Magistrates Court or a rehearing in this Court on the evidence adduced below was an appropriate order. That cannot be achieved when, in the circumstances of this matter, there is no reasonable prospect of the finding of fact being any different even if it were remitted. The bones of the defence proposition seem to me to now be indelibly inked, and so the overall position would not change. In fact, a contrary finding on the same evidence would, in my view, be erroneous and be likely to be overturned on appeal.5 [22] For the same reason, the respondent’s invitation to interfere with the factual finding and replace it with a finding that both warning lights and the siren were activated cannot be accepted. [23] I now turn to the construction point, which has been correctly conceded by the respondent, and which is the central issue in the appeal. There are two earlier decisions of this Court which have briefly touched on the point, but only by way of obiter.6 While her Honour referred to Cronin in her reasons, she did not do so in relation to the construction point. As there is no decision dealing directly with this construction point, I considered it appropriate to deliver prepared reasons. [24] The relevant legislative provisions have earlier been set out. In effect, her Honour found that the activation of the flashing lights was sufficient to amount to “giving a physical … signal” for the purposes of s 748(1)(c)(i) of the PPRA. By logical extension, that must also mean that the activation only of an alarm, as defined, without the activation of warning lights would also amount to the giving of a direction for the purposes of that provision, as it would amount to the giving of an “audible signal”. As the term “alarm” includes the vehicle’s horn, the briefest of audible “peeps” of the vehicle’s horn, without the activation of flashing lights, would require a driver to stop his or her vehicle in the manor contemplated by s. 754(2) of the PPRA.7 This would obviously be an unintended consequence of adopting her Honour’s interpretation of the provision and would be contrary to the purpose of the provision. 4 Fox v Percy (2003) 214 CLR 118, [23]-[24]. 5 R v Bennetts [2018] QCA 99, [12]; R v O’Dempsey [2018] QCA 364, [110]-[112]. 6 Cronin v Commissioner of Police, supra at [32]; Davies v Commissioner of Police [2018] QDC 201, fn 12. 7 That observation should not be taken to suggest that the only means of giving an audible signal for the provisions of these provisions is the use of the police vehicle’s horn. Clearly the phrase is of much wider application. I have referred to the use of the horn as an example only. -- 6 of 8 -- 7 [25] It is a central precept in the sometimes difficult task of statutory interpretation that an interpretation that gives effect to every word in the provision is preferable to one that does not. That may mean that on occasions one part of a provision must be understood in the manner that affords primacy to another provision or part of a provision, so as to achieve unity in the overall effect of the statutory scheme under contemplation.8 [26] The construction applied by the Magistrate made s 748(1)(c)(ii) redundant. While on one view, when considered in isolation, the words of that provision can accommodate the activation only of warning lights, and by extension the sounding of an “alarm” only, that fails to have regard to the test outlined above in Project Blue Sky. The preferred interpretation is that whenever warning lights or an alarm are activated for the purposes of giving a direction under s. 748(2)(c) of the PPRA, they must be activated together. If they are not, their activation is insufficient to satisfy the requirements of s. 748 of the PPRA. [27] Further, where it necessary to consider, it would also fail tests based on purposive considerations of statutory construction. The purpose of requiring both warning lights and an alarm to be activated is clearly designed to provide a level of protection to the rights of motorists by ensuring they are properly aware of the direction to stop their vehicle. The contrary interpretation would result in an indefensible erosion of those rights, and would be contrary to at least some of the purposes of the legislation.9 [28] For these reasons the appeal was allowed and the conviction for the evasion offence was quashed, with a verdict of acquittal entered. The entry of the verdict of acquittal was the only appropriate order given the state of the evidence. An unintended outcome of the appeal [29] There has been an unfortunate, and I accept unintended, consequence given the success of the appeal. [30] As extracted above, the evasion offence carried a mandatory minimum penalty in the form of a minimum period of imprisonment or a minimum fine, as well as a period of two years disqualification of the driver’s licence. The appellant is a young man, albeit one with a very poor traffic history. In light of that, and of other debts already owing, the Magistrate understandably imposed the minimum fine for the evasion offence, then $6,892.50, and ordered the mandatory disqualification for the evasion offence. She also, again understandably, decided to not further punish him on the unlicenced driving offence apart from imposing the mandatory period of six months disqualification. His success on the appeal means that he has, in effect, avoided the imposition of a fine for the only offence of which he was properly convicted. In other words, a fine was an otherwise a likely penalty for the unlicensed driving offence but was avoided because of totality considerations then thought to exist. Both parties’ 8 Project Blue Sky Inc & Ors v Australian Broadcast Authority (1998) 194 CLR 355, [69]-[71]. 9 See s. 5(e) of the PPRA. -- 7 of 8 -- 8 legal representatives were unable to explain how this might be resolved on the hearing of the appeal. [31] Accordingly, and without expressing any view as to appropriateness of taking such a course, it remains a matter for the respondent as to whether she decides to seek an extension of time to reopen the sentence on the remaining charge.10 Costs [32] Given the appellant’s solicitor has, commendably, appeared pro bono, costs are not sought, and no order is made. 10 Section 188 of the Penalties and Sentences Act. -- 8 of 8 --