Cronin v Commissioner of Police [2016] QDC 63

DISTRICT COURT OF QUEENSLAND CITATION: Cronin v Commissioner of Police [2016] QDC 63 PARTIES: ROBERT CRONIN (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: D95/15 DIVISION: PROCEEDING: Criminal Appeal ORIGINATING COURT: Magistrates Court at Ipswich DELIVERED ON: 24 March 2016 DELIVERED AT: Ipswich HEARING DATE: 22 March 2016 JUDGE: Horneman-Wren SC, DCJ ORDER: 1. Appeal against conviction dismissed. 2. Appeal against sentence allowed. 3. Set aside a fine of $5,900 imposed on 29 October 2015. 4. I will hear the parties further on a resentencing of the defendant. CATCHWORDS: APPEAL UNDER s 222 JUSTICE ACT- APPEAL AGAINST CONVICTION- APPEAL AGAINST SENTENCE- whether the learned magistrate erred in law in his interpretation and application of s754 of the PPRA- whether the learned magistrate erred in convicting the appellant against the weight of admissible evidence and by his consideration of irrelevant evidence- where appeal against conviction dismissed-where appeal against sentence allowed COUNSEL: Mr R Reid for the Crown Mr V Knox for the Defendant/Appellant SOLICITORS: Office of the Director of Public Prosecutions ATSILS -- 1 of 11 -- 2 [1] On 29 October 2015 the appellant was convicted in the Magistrates Court at Ipswich of the following offences all of which arose out of his riding, on that date, a pushbike which was being powered by a 25cc combustion engine. 1. Failing to stop motor vehicle – s 754(1) and (2), Police Powers and Responsibilities Act 2012; 2. Driving of motor vehicle without a driver’s licence SPER suspended – s 78(1)(3)(g) Transport Operations (Road Use Management) Act 1995; 3. Use of an unregistered vehicle – s 11 Transport Operations (Road Use Management – Vehicle Registration) Regulations 2010; 4. Driving uninsured vehicle – s 20(1) Motor Accident Insurance Act 1994; 5. Assaulting or obstructing a police officer – s 790(1) Police Powers and Responsibilities Act 2012; 6. Failuring to wear a motorbike helmet – s 270(1) Transport Operations (Road Use Management – Road Rules) Regulations 2009. [2] He was convicted of all offences after a summary trial. [3] For the six offences he was fined $5,900. That fine was based upon the learned magistrate’s understanding that there was a mandatory minimum penalty for the failure to stop a motor vehicle offence against s 754(2) of the Police Powers and Responsibilities Act 2012 of 50 penalty units which at the time equated to $5,890. It is apparent that His Honour did not consider that any other sentencing options, such as community based orders, were open to him. [4] The appellant appeals against both his conviction on the failure to stop a motor vehicle charge and against the sentence imposed by the learned magistrate in respect of all charges. -- 2 of 11 -- 3 [5] In respect of the latter, the respondent concedes that his Honour impermissibly fettered his sentencing discretion and that, no matter what the outcome of the appeal against conviction for the failure to stop offence, the appellant must be re-sentenced. [6] The appeal against conviction for the failing to stop a motor vehicle charge is advanced on two bases. First, that the learned magistrate erred in law in his interpretation and application of s 754 of the PPRA and, secondly, that his Honour erred in convicting the appellant against the weight of admissible evidence and by his consideration of irrelevant evidence. [7] As to the first basis, the appellant submits that s 754 of the PPRA provides for an “evasion offence” and that, as such, it was the clear intention of the legislature that the offence was to be something more than a simple failure to stop when directed by police. He contends that it is an offence clearly intended to have an element of intention on the part of the alleged offender to avoid, that is to run away from, police. [8] The appellant submits that the learned magistrate misdirected himself as to that requirement; that is, that he did not recognise that it was an element of the offence. Further, it is submitted that on the evidence before him that element could not be made out. [9] In my view, this first challenge to the learned magistrate’s decision must be rejected. [10] Section 754 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 vehicle a direction to stop the motor vehicle the driver is driving: s754(1). -- 3 of 11 -- 4 [11] Section 754(2) creates the offence. It provides that the driver of the motor vehicle must stop the vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances. [12] Section 754(4) provides that an offence against 754(2) is an “evasion offence”. Section 747, for the purposes of chapter 22 of the PPRA, defines an “evasion offence” to mean an offence against s 754(2). The legislature having defined such an offence by use of the word “evasion” does not lead to, or permit, a gloss being applied to the otherwise clear words of s 754(2) to add an element of intention, otherwise absent from the statutory prescription of the offence. [13] Nor, in my view, is an element of intention implied by s 754(5) which provides that for subsection (2) it is sufficient evidence of the commission of the offence if the evidence is that, the driver, in failing to stop, took action to avoid being intercepted by a police officer. That provision simply establishes that if the state of the evidence is that in failing to stop the driver took action to avoid being intercepted, then the failure to stop as soon as reasonably practicable in circumstances in which a reasonable person would stop, would be made out. [14] In any event, I am of the view that the evidence did establish beyond reasonable doubt that the appellant failed to stop his vehicle as soon as reasonably practicable when a reasonable person would have done so in the circumstances. I am also of the view that the evidence did establish beyond reasonable doubt that in failing to stop the appellant took action to avoid being intercepted. In his reasons, the learned magistrate found: “Subsection (2) of the section provides that the driver of a vehicle must stop the vehicle as soon as practicable if a reasonable person would stop the vehicle in the circumstances, and, in my view, there is no doubt that once over the bridge, a reasonable person would have stopped the vehicle, and it was certainly reasonable to do so in the -- 4 of 11 -- 5 circumstances. Continuing on despite the warning into another street, and off the footpath and down a bike path towards the river, in my view, is not either complying with the direction nor is the place where the defendant ultimately stopped reasonably complying with the direction in the circumstances, especially having regard to the second direction given with activated lights and sirens and a direction to stop using the PA system before the defendant – when the defendant went up onto the footpath. I accept the evidence that that occurred and that the direction was not obeyed.” [15] The evidence of the police officer, Sergeant Brett, who was on patrol alone on the day was that having observed the bicycle, which was travelling quite fast for a bicycle which he saw was not actually being peddled, he caught up with the vehicle on the David Trumpy Bridge as both vehicles were headed towards the Ipswich CBD. [16] Having observed that the vehicle was fitted with a petrol combustion engine which was propelling it, he positioned the police vehicle beside the bicycle and wound down the passenger window of the police vehicle. Sergeant Brett then used the PA system which is part of the police vehicle’s integrated electronic system and said to the appellant a number of times, “Turn left off the bridge and stop”.1 He said that he was directly beside the appellant at the time and that the appellant was looking directly at him when he was using the PA system. Sergeant Brett said that he believes the appellant understood his direction to stop because the appellant was looking directly at him and nodded his head.2 [17] Sergeant Brett gave the following evidence: “So I observed the defendant continue south along the David Trumpy Bridge and turn left from the bridge onto Olga Street. As he turned left on to Olga Street, there’s a large area there which is quite suitable to – for a vehicle – a full size motor car or even a light rigid truck to stop on – as you turn left off the bridge. However, I observed that the defendant did not stop and that he continued and that, in fact, his vehicle gained in speed and that he continued along Olga Street, still being propelled by the engine fitted to the vehicle, down Olga Street where I then observed him to turn right from Olga Street into Bremer 1 Transcript 29 October 2015, pp 1-7, L 1. 2 Ibid at LL 5-10. -- 5 of 11 -- 6 Parade. Now, as he turned right into Bremer Parade, the vehicle was still travelling at speed and he – for a short distance, he travelled along Bremer Parade at speed, still again being prepared – propelled by the engine. Again, there was ample room for him once he’d cleared the roundabout to stop. However, this stage is when I observed the defendant using the – the vehicle mount the footpath of Bremer Parade and then start to head towards the River Heart Bicycle Path. Now, that’s a bicycle path which runs down along the – towards the Bremer River and designed for pedestrians and bicycles, not for motorised vehicles. I observed – as the defendant has mounted the footpath, I’ve pulled up and I’ve activated the lights and sirens. Gave him a short burst of the sirens and – which, when you hit the alert button, it also activates the lights as well as the sirens. I then turned that off and again used the PA system, yelled a number of times the word “stop”. “Stop, stop”. I observed that the defendant again has failed to comply with my directions to stop and has continued to attempt to evade me. This was clear from my observations of what was happening in that he was not stopping. I observed the defendant then turn and head down the bicycle path and – where I lost sight of the defendant. At that stage when I’ve lost – as I’m losing sight of the defendant and his manoeuvring into the bicycle path, the combustion engine has stopped – cut out and the defendant has begun pedalling the vehicle. And I’ve lost sight of the vehicle.” [18] Sergeant Brett was not cross-examined. [19] A video-recording was played which corroborated Sergeant Brett’s evidence concerning the location of the two vehicles on the David Trumpy Bridge. That evidence was also played on the appeal. It shows the police car pull up to the side of the appellant’s bicycle and stay beside it for a distance, at one stage crossing the broken line which separated the two left hand lanes in the direction of travel. Other CCTV evidence showed the arrival of the bicycle followed by the police car at the point of which the appellant left the roadway and rode down on a bicycle pathway. [20] The CCTV footage on the David Trumpy Bridge would not, however, establish that any direction was issued by Sergeant Brett. There was no audio associated with the footage. [21] The appellant gave evidence. He gave this version of events: -- 6 of 11 -- 7 “I was riding home from church, got to the Trumpy Bridge… and this police officer pulled up along side, I looked at him and he looked at me, and then I kept riding down the hill, and then rode down to the river because I was going to look at the river, and then he come down the ramp way and said I failed to stop. I said to – I – I said, well, take me back up to the – no. I said I want to stay here and be booked here, and he said I’ll arrest you if you don’t get back up to the road.3 [22] When cross-examined he denied that he was directed to take the next left and stop. He said that there was no loud hailing at all. On the appellant’s version, Sergeant Brett definitely said nothing at all. He says that he and the officer looked at each other, but that eye contact was all there was. [23] Had there been a direction issued, on the appellant’s evidence, there was no impediment to his having heard it. He said “I had a pushbike helmet on and I can quite easily hear”.4 [24] Having initially said that he rode down to the river because he was going to have a look at it, the appellant later said that he went down to the river because he was wanting to drown himself, and later still, that may be he was going there for a drink.5 [25] In my view, in the absence of any challenge to Sergeant Brett’s evidence in cross- examination, and these varying accounts as to why the appellant rode his bicycle towards the river, the magistrate was entitled to prefer the evidence of Sergeant Brett over that of the appellant. Accepting Sergeant Brett’s evidence could lead to satisfaction beyond reasonable doubt both that the appellant had failed to stop when reasonably practicable when a reasonable person would have done so in the circumstances, and also, in my view, that he took action to avoid interception. 3 Transcript 29 October 2015, pp 1-4, LL 25-30. 4 Transcript 1-28, L 20. 5 Transcript 1-29, LL 2 and 32. -- 7 of 11 -- 8 [26] Satisfaction of those matters beyond reasonable doubt is also supported by the following passage of evidence given in the cross-examination of the appellant immediately following his last suggested reason of going towards the river being that “you can’t deny me access to the water. Maybe I was going there for a drink.”6 [27] The evidence went on: “OK. Well, I suggest you ultimately that you went down there to get away from the police officer. What do you say to that? --- Well, the way it’s all turned out, the – the bridge, there’s no place to stop. There’s no standing zone, and all the way down that road there’s no standing zone, and then I’ve got a safe spot there to stop on the boardwalk that’s --- pushbike and people - people friendly.”7 [28] For those reasons the first basis of challenge to his Honour’s decision must be rejected. [29] The appellant mounts a further factual challenge to the learned Magistrate’s decision. He submits that an essential element of the offence under s 754(2) is the giving of a direction under the PPRA. It is submitted for the appellant that the police officer gave evidence that when he was level with and a short distance from the appellant he looked at the appellant, who also looked at him, and used the PA system of the police vehicle to direct the appellant to stop. By contrast, the appellant says that the police vehicle was in the other inbound lane and that although they looked at each other, no direction was given [30] The appellant’s written submissions include: “The CCTV footage of the incident shows indeed the police vehicle in the other lane and that the ‘lights’ are not activated during this time. In fact, the only time that the lights are activated is after the applicant has driven onto the bike path when the police vehicle is still on the roadway and when it is clear in the applicant’s submission it was not physically possible for him to see them and in fact they were only on 6 Transcript 1-29, LL 31-32. 7 Transcript 1-29, LL 34-38. -- 8 of 11 -- 9 momentarily and it would not be reasonable for any person to interpret this as a direction to stop. It is therefore submitted that the learned Magistrate erred in accepting the police officer’s evidence and found against the weight of evidence in respect of this element (the giving of the direction) by finding it was made out. The CCTV footage clearly supports the version of the applicant and is in direct conflict with the elements of the police officer’s evidence, in particular regarding the giving of the direction and it is submitted that it was unreasonable for the Magistrate to be satisfied beyond a reasonable doubt that the police officer’s account was truthful and reliable when it differed from that of the applicant.”8 [31] Those submissions should be rejected. [32] It is indeed an element of the offence under s 754 of the PPRA that a direction be given. Section 748(1) provides that a police officer gives a direction to the driver of another vehicle if, relevantly: (a) the police officer is in a police service motor vehicle that is being used to attempt to intercept the motor vehicle the driver is driving; (b) the driver of the police vehicle brings that vehicle to a position in relation to the other motor vehicle where the driver of the police vehicle can give the driver of the other vehicle a direction to stop the other vehicle; and (c) the police officer signals to the driver of the other vehicle to stop by giving a physical or audible signal or by displaying warning lights and sounding an alarm. [33] The appellant’s assertion that the CCTV footage shows the police vehicle in the other lane is incorrect. As already noted, the footage shows the police vehicle positioning itself beside the bicycle when those vehicles occupied the same lane. The police vehicle remains beside the bicycle for a distance. The police vehicle does cross the broken lines separating the two inbound lanes of traffic, but at no point does the police vehicle occupy or fully enter the adjacent lane. 8 Appellant’s written submissions filed 29 January 2016, paragraph 9-10. -- 9 of 11 -- 10 [34] In my view, that CCTV footage, with Sergeant Brett’s evidence, establishes the requirements of s 748(1)(a) and (b) that the police vehicle driven by Sergeant Brett was being used to attempt to intercept the vehicle being driven by the appellant, and that Sergeant Brett brought the police vehicle to a position in relation to the bicycle where he could give the appellant a direction to stop. [35] The appellant’s reliance on the absence of “lights” being activated is misplaced. The third requirement for the giving of a direction prescribed by s 748(1)(c) is that the police officer signal the driver to stop either by physical or audible signal, or by displaying lights and sounding an alarm. Sergeant Brett’s evidence was not that the lights would be displayed when an audible warning was given using the vehicle PA. His evidence was that the effect of using the PA to give the direction was that through its integration with the vehicle’s electronics it was designed to amplify the user’s voice to approximately the same decibels as the police siren. The absence of “lights” in no way evidences an absence of an audible signal. [36] The learned Magistrate was quite entitled to prefer the evidence of Sergeant Brett over that of the appellant as to whether an audible signal was given. That is particularly so given, that for the reasons already indicated, there was cause to doubt the appellant’s evidence as to his reasons for riding toward the river and his seemingly having accepted in cross-examination that a direction to stop had been given. [37] For these reasons, the appellant’s challenge to the factual basis upon which it could be found that there was a direction given under s 748 should be rejected. The learned magistrate was able to be satisfied beyond reasonable doubt that such a direction had been given. -- 10 of 11 -- 11 [38] The appeal against conviction of the offence under s 754 must, therefore, be dismissed. [39] As already noted, the respondent concedes that the appeal against sentence should be allowed because the learned magistrate impermissibly fettered the sentencing discretion believing no sentencing options other than a mandatory minimum fine were available to him for the failure to stop charge. The appellant, therefore, must be re- sentenced. [40] The appeal proceeded on the basis that submissions on re-sentencing would be heard after the appeal against conviction was determined. I will hear from the parties as to the re-sentencing of the appellant. -- 11 of 11 --