Bartzis v Commissioner of Police [2012] QDC 192

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QDC [2012] 232 DISTRICT COURT APPELLATE JURISDICTION JUDGE DEARDEN STAVROS BARTZIS Applicant and COMMISSIONER OF POLICE Respondent BEENLEIGH ..DATE 02/02/2012 JUDGMENT -- 1 of 14 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 Introduction This is an appeal by the appellant, Stavros Bartzis, in respect of his conviction after trial of one charge of failing to wear a seatbelt while the driver of a car which was moving in a road. The law An appeal to the District Court pursuant to Justices Act s.222 is by way of rehearing and requires the relevant District Court Judge to make their "own determination of relevant facts in issue from the evidence, giving due deference and detaching a great deal of weight to the Magistrate's view." Rowe v Kemper [2008] QCA 175, per McMurdo P at paragraph 3. The powers of an appellate court can only be exercised if "the order that is the subject of the appeal is the result of some legal, factual or discretionary error" (Allesch v Munz (2000) 203 CLR 172, 180-181, as cited in Teelow v Commissioner of Police [2009] 2 Qd R 489, paras 3 and 4 per Muir, JA; and Osgood v Queensland Police Service [2010] QCA 242, per White, JA, paragraph 20). The facts The trial proceeded before the learned Acting Magistrate at Beenleigh on 9 August 2011. I note that at the commencement of the trial, the learned Acting Magistrate read into the -- 2 of 14 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 record the terms of the complaint and summons (which does appear to differ in some way from a document which Mr Bartzis says that he received). The terms of that summons as read into the record by the learned Acting Magistrate are as follows, "That on the 11th day of November 2010 at Slacks Creek in the Magistrates Court District of Beenleigh in the State of Queensland, one Stavros Bartzis, being the driver of a vehicle, namely a motor car, which was moving on a road, namely Meakin Road, Slacks Creek, failed to wear a seatbelt properly adjusted and fastened." The learned Acting Magistrate quite properly confirmed that the appellant had entered a plea of not guilty which was maintained. The learned Acting Magistrate then took some time to explain the trial process and there can be no doubt as to the nature of the offence which Mr Bartzis, the appellant, was facing. Evidence was called at the trial from two police officers, Senior Constable Shaun Sutton and Sergeant Kenneth Schofield. Senior Constable Sutton gave evidence that on 11 November 2010, while working with Sergeant Schofield, he (Senior Constable Sutton) observed the appellant in a white utility as he pulled up to the intersection of Meakin Road and Queens Road, Slacks Creek. Senior Constable Sutton gave evidence that the appellant's car was moving slowly when he first observed it, that there was no seatbelt across the appellant, and that both strands of the seatbelt were vertical and ran -- 3 of 14 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 parallel to the B-pillar in that vehicle. Senior Constable Sutton gave evidence that the appellant proceeded through the intersection and the police car pulled up behind him. Senior Constable Sutton recorded the conversation with the appellant and part of that conversation was played in Court (Exhibit 2). I note that prior to delivering these decisions I've had the opportunity of playing part of that conversation on Exhibit 2 which is a CD. During the course of that conversation, the appellant agreed that he was not wearing a seatbelt (a position which he maintains on this appeal today) and explained, "I was coming out of [indistinct]… I was just a couple of minutes too late to put it on." Senior Constable Sutton gave evidence that the seatbelt was in the same position as he first saw it (i.e. not across the appellant) when he approached the vehicle prior to his conversation with the appellant. It was put to Senior Constable Sutton by the appellant (quite properly in my view) that in his police statement, Senior Constable Sutton had said that the appellant's vehicle was stopped when he first saw him. Senior Constable Sutton maintained in cross-examination, contrary to his police statement, that the appellant's vehicle was crawling to a stop (i.e. still moving) when he first observed it. -- 4 of 14 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 In re-examination, Senior Constable Sutton gave evidence that the appellant had been intercepted on the opposite side of Meakin Road, across Queens Road, from the stop sign where the appellant was first observed by Senior Constable Sutton. It can be inferred by this that although the appellant's vehicle at some stage was stationery at the stop sign, it then moved off and stopped on the other side of the intersection. Sergeant Kenneth Schofield gave evidence that he too had observed the appellant's seatbelt not fastened across his chest, but hanging by the door pillar. In cross-examination, Sergeant Schofield gave evidence that the appellant's vehicle was 20 to 30 metres from the intersection, and slowing to a stop, when Sergeant Schofield first observed the vehicle. The appellant neither called nor gave evidence at his trial. It follows that the only evidence then before the learned Acting Magistrate on which he could form conclusions, was the evidence of police officers Sutton and Schofield, a diagram drawn by police officer Sutton (Exhibit 1) and a copy of the tape recording of the conversation between police officer Sutton and the appellant. The learned Magistrate's decision The learned Acting Magistrate correctly identified that the onus of proof was beyond reasonable doubt and that it lay on the prosecution. -- 5 of 14 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 The learned Acting Magistrate identified the relevant section of the Transport Operations (Road Rules) Regulations, and outlined the terms of that Regulation in his reasons for decision as follows:- "The complaint is laid under section 264 of the Transport Operations (Road Rules) Regulations, which says, 'The driver of a motor vehicle that is moving or is stationery but not parked must comply with this section if the driver's seating position is fitted with a seatbelt.' Subsection (2) provides, 'The driver must wear the seatbelt properly adjusted and fastened unless the driver is (a) reversing the vehicle; or (b) exempt from wearing a seatbelt under section 267.'" (Decision p. 2) The learned Acting Magistrate then appropriately dealt with the evidence, in particular the issue raised by Mr Bartzis (both on the trial and on this appeal) in the following terms. (Decision pp. 2-4) "The evidence that's been put before the Court is in the main accepted by the defendant Mr Bartzis. His main objection to the evidence is that at the time that his vehicle was travelling on Meakin Road approaching the stop sign with Queens Road when the officers first saw him, that his vehicle was stationery. And I can understand in one regard why he continues to claim that, because the statement of Senior Constable Sutton, although it was not produced to him, Senior Constable Sutton accepted that if what was stated in his statement [sic], it says that when he first saw the vehicle driven by Mr Bartzis that it was stopped, then that's in fact what it is. His evidence in the witness box is contrary to that in that he has altered that to say that at -- 6 of 14 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 the time he first saw the Nissan Navara driven by Mr Bartzis, that it was moving slowly and that it then came to a stop at the stop sign at the intersection with Queens Road. Sergeant Schofield's evidence is that when he first saw the vehicle driven by Mr Bartzis he was about 20 or 30 metres from the intersection, or from them. His recollection was to the extent that he couldn’t state whether the police vehicle was still in Queens Road or had completed its left turn into Meakin Road at the time he observed this, but he accepted that the vehicle driven by the defendant did in fact stop at the stop sign. The evidence of the Prosecution is that when the police vehicle does a U-turn and follows the defendant's vehicle and that the defendant's vehicle travelled straight ahead across the intersection, travels across Queens Road into Meakin Road and is intercepted a short distance past the intersection (sic). And apart from, as I mentioned, whether Mr Bartzis' vehicle was actually stopped at the stop sign when the police saw it, there's no real other contest with the evidence. The evidence by both officers, Sergeant Schofield and Senior Constable Sutton, is at the time they do this turn from Queens Road, this left turn into Meakin Road, and travel in the opposite direction, as it is, past the defendant's vehicle, that they both observe that the seatbelt is up against what they describe as the B pillar in the vehicle and not across the body or the chest area of the defendant as required. And -- 7 of 14 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 they do the U-turn and intercept the vehicle. When the taped conversation is played to the Court, the admissible parts of that conversation, it's clear on that that Mr Bartzis accepted that he did have the seatbelt on at that time, and Senior Constable Sutton says that when he approached the defendant's vehicle that the seatbelt was in the same position where he'd observed it when he first saw it on the other side of Queens Road in Meakin Road; that is, it was up against the pillar of the motor vehicle and not across the body area of the defendant." The learned Acting Magistrate then adverted to the confusion in wording between a bench charge sheet which the appellant apparently had, and the complaint and summons filed in the court and the content of which was read to the defendant/appellant at the start of the trial. The learned Acting Magistrate, in my view, quite properly, identified that the appellant was on trial for the charge contained in the complaint and summons which, for the record, I will read again. It states that: "On the 11th day of November 2010 at Slacks Creek in the Magistrates' Court district of Beenleigh in the State of Queensland one Stavros Bartzis being the driver of a vehicle, namely a motor vehicle which was moving on a road, namely Meakin Road, Slacks Creek, failed to wear a seatbelt properly adjusted and fastened." The learned Acting Magistrate then made the following -- 8 of 14 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 findings: "And on the evidence before me, it establishes that you were moving prior to coming to the stop sign, that you were in the course of a journey, as it were. You then travelled across the intersection and stopped a short distance, only a relatively short distance because I can take notice that it was only across the intersection of Queens Road, and then stopped on the left-hand side in Meakin Road. But at that time, I'm satisfied on the evidence and as you accept, you did not have your seatbelt on, and at the time when the officers first saw you, yes, your vehicle was moving and that it moved across the intersection of Queens Road and when you came to a stop on the other side you did not still have your seatbelt on, so I'm satisfied when they observed you you did not wear your seatbelt, despite that the senior constable said, that when he first observed you you were stopped. Sergeant Schofield's evidence supports the fact that when they did see you initially your vehicle was moving. Now, there is no exception claimed by you under the provisions of section 267 at the time when you were intercepted by the police, not (sic) in court here today. So on all of the evidence I am satisfied that the Prosecution have established their case against you beyond reasonable doubt and I find you guilty of that offence" (Decision p4-5). -- 9 of 14 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 Conclusions: If I understand the appellant's arguments correctly, he argues that the court should have relied on the evidence from Senior Constable Sutton as contained in his statement, that when he first saw the appellant, the appellant was at the stop sign and stopped. However, even if the evidence is approached in that way, it is clear that the offence is made out if there was relevant and admissible evidence that the appellant's vehicle was moving, either before and/or after the stop sign. As the learned Acting Magistrate adverted to, there was in fact ample evidence to that effect even if Senior Constable Sutton's evidence is discounted given the conflict quite appropriately pointed out by Mr Bartzis between Senior Constable Sutton's statement and his oral evidence. I note, though, that of course as the learned Acting Magistrate pointed out, that conflict was not "proved" in accordance with the rules of evidence. In particular the statement wasn't shown to Senior Constable Sutton so he had the opportunity to see what was contained in it. However, Senior Constable Sutton accepted what the appellant put to him in cross-examination and the learned Acting Magistrate accepted the point made by the appellant which was that there was a conflict between Senior Constable Sutton's statement and his oral evidence. Even if that evidence were put to one side, completely, -- 10 of 14 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 Sergeant Schofield's unchallenged evidence, and the appellant's own admissions, on tape, at the scene, are more than sufficient evidence to persuade the learned Acting Magistrate, beyond reasonable doubt, that the appellant had been the driver of a motor vehicle, on a road (namely Meakin Road) who failed to wear a seatbelt properly adjusted and fastened. The charge which proceeded against the appellant before the learned Acting Magistrate, as contained in the complaint and summons, read out to the appellant at the start of his trial, and confirmed as being the matter on trial by the learned Acting Magistrate during the course of his decision, was always a charge of not wearing a seatbelt while the appellant's vehicle was moving, rather than not wearing a seatbelt while that vehicle was stopped. The ground of appeal contained in the appellant's notice of appeal (file document 1) is in these terms: "I was charged (as I see) not wearing seatbelt while my car was stopped (I was about to get out of the car). The Court find (as I see) me guilty not wearing seatbelt driving a car which was moving." It's not entirely clear to me what the ground of appeal is that is contained within that wording, but to the extent that it does amount to a ground of appeal, it must fail, as it is based on an inaccurate understanding of the proceedings as they actually unfolded before the learned Acting Magistrate. -- 11 of 14 -- 1-12 JUDGMENT 1 10 20 30 40 50 60 In respect of the proceedings as they did unfold, on the charge of not wearing a seatbelt while the appellant's vehicle was moving, it is clear that there was more than ample evidence to justify the learned Acting Magistrate's conclusion, beyond reasonable doubt, that the appellant was guilty as charged. No excuse pursuant to the provisions of sections 264 or 267 of the Transport Operations (Road Rules) Regulation was made out by the appellant at the trial. It follows that on this appeal, the appellant has failed to make out any "legal, factual, or discretionary error" in respect of any aspect of this appeal, however framed. Order: Appeal dismissed. Ms Howard, does the respondent have any application? MS HOWARD: No, there isn't any application in relation to the matter, your Honour. HIS HONOUR: Thank you for that. Mr Bartzis, the respondent has not sought any costs, so apart from the order of appeal dismissed which means that the fine still stands there is no other order that I need to make and there's no other effect on you or your position other than you should probably write to the Registrar of the State Penalties Enforcement Registry because an outstanding fine might affect your prison sentence at its conclusion in some way if it's not paid. -- 12 of 14 -- 1-13 JUDGMENT 1 10 20 30 40 50 60 APPELLANT: Sorry, you know nothing about this. I already paid the fine long time ago, your Honour, that's not [indistinct] HIS HONOUR: All right. Okay. But if you've paid the fine, that's fine. I don't have any record of that, you see. I don't have anything on the file that indicates----- APPELLANT: But am I here for you to decide the two police officers already - one of them lied. Is that legal? HIS HONOUR: Yes. I----- APPELLANT: Are police officers allowed to do that? HIS HONOUR: I've made my decision. APPELLANT: What your decision [indistinct] I already [indistinct] HIS HONOUR: The decision is the appeal is dismissed. So having made my decision and there being no further order that I need to make because no order is sought for costs, there is in fact nothing else that I can say to you about the appeal. That's the conclusion of the appeal. APPELLANT: You didn't explain anything about the law [indistinct] HIS HONOUR: I don't need to explain anything about that. That's - it's a current law of Queensland, Mr Bartzis. APPELLANT: Well, what's that about? I don't know nothing about it, your Honour. HIS HONOUR: It's a very long Act which you would need to consult contains all sorts of things in it which I don't think myself nor anyone else has time to explain to you today. APPELLANT: And I come to Court to answer the charge that the vehicle was not moving and not wearing a seatbelt and completely I were prepared to answer a different charge here when I come to Court. HIS HONOUR: I've explained it all, Mr Bartzis. You can obtain a copy of my reasons for the appeal, if you wish, by writing to the Registry and you can then decide what you wish to do in respect of that. That's a matter for you. Okay. APPELLANT: Yeah, I would like to obtain that. I would. HIS HONOUR: Yes. APPELLANT: I thank you, your Honour. HIS HONOUR: Okay. I'll order that a copy be provided - it has to be corrected and then I'll order that the Registry -- 13 of 14 -- 1-14 JUDGMENT 1 10 20 30 40 50 60 provide you with a copy of the reasons for decision as a matter of urgency. Okay. APPELLANT: Be forwarded to the prison? HIS HONOUR: Yes. APPELLANT: Thank you. HIS HONOUR: Thank you. I'll just have my Associate note that on the file; that's it to be posted - which prison, Mr Bartzis? APPELLANT: Woodford. HIS HONOUR: Woodford. Okay. APPELLANT: Do you want address? HIS HONOUR: No, we'll find it. APPELLANT: Okay. HIS HONOUR: Yes. Not a problem. Thank you, Mr Bartzis. APPELLANT: Thank you. HIS HONOUR: Thank you, Ms Howard. MS HOWARD: Thank you, your Honour. ----- -- 14 of 14 --