Fielding v Queensland Police Service [2018] QDC 69

1 DISTRICT COURT OF QUEENSLAND CITATION: Fielding v Queensland Police Service [2018] QDC 69 PARTIES: CARLA LEE FIELDING (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 197 of 2017 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Mareeba DELIVERED ON: 29 March 2018 (ex tempore) DELIVERED AT: Cairns HEARING DATE: 29 March 2018 JUDGE: Fantin DCJ ORDER: 1. Appeal allowed; 2. The conviction and sentence of the learned Magistrate on 26 October 2017 are set aside; 3. The charge is dismissed; 4. No order as to costs. CATCHWORDS: CRIMINAL LAW – appeal against conviction pursuant to s 222 Justices Act 1886 – overtaking when unsafe to do so – contravention of s 140 Transport Operations (Road Use Management – Road Rules) Regulation 2009 – definition of ‘overtake’ – schedule 5 – mode of hearing of appeal – error of law – whether conviction unreasonable and unsupported. Legislation Justices Act 1886 (Qld) ss 222, 223 Transport Operations (Road Use Management – Road Rules) -- 1 of 7 -- 2 Regulation 2009 (Qld) s 140, schedule 5 Cases Allesch v Maunz (2000) 203 CLR 172 Teelow v Commissioner of Police [2009] QCA 84 COUNSEL: J Trevino for the Appellant T Hancock, solicitor, for the Respondent SOLICITORS: O’Reilly Stevens Lawyers for the Appellant The Office of Director of Public Prosecutions for the Respondent -- 2 of 7 -- 3 HER HONOUR: These are my reasons. On 26 October 2017 the appellant was convicted after a summary trial in the Magistrates Court held at Mareeba of overtaking when it was unsafe to do so in contravention of section 140 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (the “Road Rules”). She was convicted and fined $170. 5 The appellant now appeals her conviction and sentence. Both parties provided outlines of argument and made submissions on the hearing of the appeal which I have considered. 10 The offending occurred on 16 April 2016 during the day on a straight stretch of road on the Kennedy Highway near Koah travelling towards Mareeba. The road was a dual carriageway, dry, in a good state of repair, and there was good visibility. At the time the appellant was 22 years old. Her car was travelling behind a red utility. Travelling behind both the utility and the appellant’s car was a green Subaru wagon. 15 The green Subaru wagon attempted to overtake both the appellant’s car and the utility in front. It pulled out into the right-hand lane and moved to a position parallel with the appellant’s car. At that point the appellant moved her car towards the right- hand lane forcing the Subaru onto the right-hand shoulder of the road. The appellant’s car then veered sharply back to the left before leaving the road and 20 rolling over. The appellant appeals pursuant to section 222 of the Justices Act 1886 Queensland. Pursuant to section 223, the appeal is by way of rehearing on the original evidence given in the proceeding before the Magistrate and any new evidence adduced by 25 leave on appeal. In this appeal there is no application to adduce fresh evidence. For an appeal by way of rehearing: The powers of the appellate court are exercisable only where the appellant can 30 demonstrate that having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error ... at least that is so unless in the case of an appeal by way of rehearing there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first 35 instance.1 But the court does not merely consider whether or not the Magistrate has made an error of fact or law. The rehearing requires this court to conduct a real review of the evidence before it and make up its own mind about the case. Its function is to 40 consider each of the grounds of appeal having regard to the evidence and to determine for itself the facts of the case and the legal consequences that follow from the findings. In doing so, it ought to pay due regard to the advantage that the Magistrate had in seeing the witnesses give evidence and attach a good deal of weight to the Magistrate’s view. 45 The offence is section 140 of the Road Rules. That section provides: 1 Allesch v Maunz (2000) 203 CLR 172 at paragraphs 22 to 23 followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]. -- 3 of 7 -- 4 140. No overtaking unless safe to do so. A driver must not overtake a vehicle unless – (a) the driver has a clear view 5 of any approaching traffic; and (b) the driver can safely overtake the vehicle. Maximum penalty 20 penalty units. The word “overtake” is defined in schedule 5 of the Road Rules as follows: 10 Overtake, for a driver, means the action of (a) approaching from behind another driver travelling in the same marked lane or line of traffic; and 15 (b) moving into an adjacent marked lane or a part of a road where there is room for a line of traffic, whether or not the lane or part of the road is for drivers travelling in the same direction; and (c) passing the other driver while travelling in the adjacent marked lane or line 20 of traffic. It will immediately be seen that the definition of “overtake” is conjunctive, not disjunctive. In order to prove an offence under section 140, each of the three elements of the definition of “overtake” in schedule 5 must be satisfied. That is, the 25 action of overtaking must involve the driver firstly approaching from behind another driver; secondly, moving into an adjacent marked lane or part of a road where there is room for a line of traffic; and thirdly, passing the other driver while travelling in the adjacent marked lane or line of traffic. It is the second and third limbs of the definition which are in issue here. 30 There are two grounds of appeal. The first ground articulated in the notice of appeal is that the learned trial Magistrate erred in law in determining that the appellant’s driving action involved the “overtake 35 of a vehicle” in circumstances where the appellant’s driving did not involve “the passing of another driver while travelling in the adjacent marked lane or line of traffic” as required by paragraph (c) of the definition of “overtake” in schedule 5 (ground 1). 40 The appellant sought and was granted (without opposition by the respondent) leave to add a second ground of appeal. It is that the learned trial Magistrate erred in finding that the appellant’s driving action involved the overtaking of a vehicle in circumstances where the evidence was not capable of establishing beyond reasonable doubt that the appellant’s driving action involved “moving into an adjacent marked 45 lane” as required by paragraph (b) of the definition of “overtake” in schedule 5 of the Road Rules (ground 2). The respondent concedes that the appeal should be allowed and the conviction set aside. Notwithstanding that concession, this court must be satisfied that the order 50 that is the subject of the appeal is, in fact, the result of some legal, factual or -- 4 of 7 -- 5 discretionary error. This court must conduct a real review of the evidence and make up its own mind about the case. The following summary of the evidence at trial is drawn from the appellant’s written submissions. The driver of the green Subaru wagon gave evidence of attempting to 5 overtake the appellant’s car and the red utility travelling in front of her. He said that as he came alongside the appellant’s car it “moved out and actually forced me off the road.” He was not asked to further explain to clarify what he meant by the words “moved out”. He said that his car travelled off the sealed road, but he managed to return to it before continuing his overtaking manoeuvre. He had passed both the 10 appellant’s car and the red utility and continued on. He was not aware of anything that had happened behind him. Mr Jutzi, was the driver of a car ahead of the red utility. He gave evidence that he had the opportunity to observe in his rear-view mirror a green car attempting to 15 overtake the utility he had just passed. He said he saw the green car in the overtaking lane and then saw a maroon car (the appellant’s car) “coming out also”. The green car moved over to the right, but continued its overtaking manoeuvre, whereas the maroon car “went to the left”. He then saw “a lot of smoke” and then a “rollover” of the maroon car. 20 Mr Bookall, was the driver of the red utility. He gave evidence that he could see a green car “coming up behind [him] a long way back”. He described observing the car go “straight past” the red car directly behind him and then past him. His evidence continued: 25 The maroon car seemed to veer slightly to the right and then jerk back a bit left. He’s long gone and then so the red/brown car is still following me. The green car kept going no problems and then the red car pulled out – went to pull out, I thought, and then just started to fishtail... 30 The prosecution also called the investigating officer, Senior Constable Bayliss. Through him, 10 photographs of the scene were tendered. Photograph 2 depicted what looked like “a tyre mark in the eastbound lane”. However, the witness gave no evidence that this mark was made by the appellant’s car. Photograph 3 depicted a 35 “yaw slide”. There was no evidence given that the appellant’s car caused this marking on the road. Photographs 4, 5 and 6 depicted gouge and scrape marks in the westbound lane. Again, no evidence was given to establish the genesis of these marks and in particular that they were made by the appellant’s car. 40 The appellant’s electronic record of interview given to police was also tendered. In that interview the appellant claimed she was travelling behind the red utility and planned to overtake it. She placed her indicator on and “went to merge out” when she then said she was hit 45 from behind by the green car causing her to lose control and leave the road. At the trial the appellant did not give or call evidence. Turning then to the grounds of appeal I will deal with the first ground first. It is clear from that summary of the evidence that there was no evidence at all before the 50 Magistrate that the appellant actually passed the other driver who she had been -- 5 of 7 -- 6 approaching from behind. That is a necessary element of paragraph (c) of the definition of overtake. The learned Magistrate apparently considered that it was sufficient to meet the requirements of paragraph (c) of the definition that the appellant intended to pass the vehicle in front. In the decision, transcript page 4, from approximately lines 10 to 28 the Magistrate made these findings: 5 Now, I can understand in part the reasoning of Mr Whitla with respect to how the word, “and” should be interpreted. However, if I was to accept his argument with respect to the application of the definition of overtake, it would therefore mean that for a charge to be laid with respect to not overtaking 10 unless safe to do so, the overtaking manoeuvre would have to be completed and I think that defeats the purpose of the legislation. The mischief or the issue to be identified is the fact that the defendant had formed in her mind, the intention to overtake…however, by virtue of that definition, she did approach from behind another vehicle travelling in the same marked lane or line of traffic. 15 And she did commence the manoeuvre into an adjacent marked lane or part of the road, whether or not the lane was part of the road in which she was travelling or in the same direction. And it was her intention that she would pass the vehicle in front. To my mind, the requirements of the definition of overtake are made out…therefore, I am satisfied that the prosecution has 20 proved each and every element beyond a reasonable doubt. I find the defendant guilty as charged. There is nothing in the plain words of either section 140 or the definition of “overtake” in schedule 5 to support the learned Magistrate’s construction. The 25 offence provision, section 140, is that: A driver must not overtake a vehicle. The legislature could have included in that offence: 30 Or intend to overtake. It did not do so. 35 “Overtake” is defined to mean: “The action of” each of the three steps in paragraphs (a), (b) and (c): that is, approaching, moving, and passing. There is no reference in the definition to intending to take those actions. To imply into the express words of the definition the notion that: “The action of” includes intending to take that action, was in my respectful submission, a misconstruction of the section. It was an error of 40 law. The learned Magistrate was required by law to find the offence proved only if he was satisfied beyond reasonable doubt on the evidence that each of the actions in the definition of “overtake” was established. Here, there was no evidence at all on 45 which he could reasonably be satisfied that the action of passing the driver in front occurred. The learned Magistrate’s finding that the offence was proved in the absence of any evidence to prove the third limb of the definition was an error of law. It follows that the appeal should be allowed. For completeness, however, I will also consider the second ground of appeal. 50 -- 6 of 7 -- 7 A verdict may be disturbed if the appellant shows that the trial Magistrate acting reasonably ought to have had a sufficient doubt to entitle the appellant to an acquittal. This necessitates my independent examination of the evidence, including the credit of witnesses subject to certain qualifications and my own assessment of both the sufficiency and quality of the evidence. 5 On this issue, the learned Magistrate found that the appellant’s vehicle commenced an overtaking manoeuvre, which involved moving into the lane: see Decision at page 3, lines 5 to 25. 10 In support of that finding, the learned Magistrate said that exhibit 1 showed skid marks created by the appellant’s car, which clearly indicated that the appellant had applied the brakes when part way into, at the very least, or halfway into the overtaking lane. And that the driver of the green Subaru’s evidence was to the effect that whilst he was partway through his overtaking manoeuvre, the appellant’s vehicle 15 moved into his lane. Neither of these statements as to the nature of the evidence is accurate. The evidence did not establish how the marks on the road were created. No evidence was called or given in respect of this issue. The evidence of the driver of the green Subaru wagon was, at its highest, ambiguous as to whether the appellant’s driving action actually involved her pulling out into the overtaking lane. 20 The evidence of the two other eye witnesses, particularly that given by Mr Bookall, militated strongly against an inference that the appellant’s car moved into the overtaking lane as opposed to merely veering the right. 25 In those circumstances, the learned Magistrate erred in finding beyond reasonable doubt that the appellant’s car actually moved into the overtaking lane. As a consequence, the learned Magistrate erred in his ultimate finding that the appellant’s driving action satisfied paragraph (b) of the definition of “overtake”. It follows that this ground of appeal is also made out. 30 I make the following orders: (1) appeal allowed; (2) the conviction and sentence of the learned Magistrate on 26 October 2017 are set aside; (3) the charge is dismissed; (4) no order as to costs. I’ll just mark up those amendments to the order, which has been handed up. 35 I will make an order in terms of the draft handed up and amended by me as I’ve indicated. -- 7 of 7 --