Farag v Bone [2009] QDC 271

1-1 [2009] QDC 271 DISTRICT COURT APPELLATE JURISDICTION JUDGE RAFTER SC No 2740 of 2008 NAGWA FARAG Appellant and MERVYN KENNETH BONE Respondent BRISBANE ..DATE 21/07/2009 JUDGMENT -- 1 of 11 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: The appellant was tried in the Magistrates Court at Brisbane in respect of a charge of failing to comply with a requirement to stop, contrary to section 60 Police Powers and Responsibilities Act 2000. She was found guilty and fined $450. A conviction was not recorded. The appellant was also ordered to pay costs of Court amounting to $71.15. She has appealed against the conviction on the ground that the Magistrate erred in finding that the police had given a requirement to stop her motor vehicle. It is also contended that the Magistrate erred in holding that the prosecution had excluded the application of section 24 Criminal Code (mistake of fact). The facts are not in dispute. At approximately 2.40 a.m. on 27 October 2007, Constables Chalmers and Taylor were performing patrols around the Story Bridge area at Kangaroo Point. Constable Chalmers was driving the marked police vehicle, a large white Toyota HiLux with a white cabin on the back and a large light bar on the top. Constable Chalmers gave evidence that the vehicle was distinctive. Constable Chalmers said that he was waiting in the left lane at the traffic lights at the intersection of Deakin and Main Streets when he saw the appellant's motor vehicle pull up next to him in the right lane. The appellant was driving a dark BMW with the registration number 503-GWP. The appellant was wearing what appeared to be evening attire. Constable -- 2 of 11 -- 1-3 JUDGMENT 1 10 20 30 40 50 60 Chalmers and his partner decided to pull the appellant over in order to perform a random breath test. Both vehicles turned left on to Main Street heading south. Constable Chalmers positioned his vehicle behind the BMW in the right lane. The two vehicles were the only vehicles on the road at that point. The appellant indicated to turn right into River Terrace. At that point Constable Chalmers activated the lights and siren on the police vehicle. The police vehicle travelled approximately 20 metres behind the appellant's vehicle along River Terrace. River Terrace has a single southbound lane and there was no other traffic on that part of the road. Both vehicles proceeded along River Terrace with Constable Chalmers maintaining a distance of about 20 metres between the two vehicles keeping the lights and siren on the police vehicle activated. The appellant did not pull over until she was close to the end of River Terrace having driven past Lockerbie Street, a distance of approximately 500 metres. The appellant pulled over on the left just after Lockerbie Street. Constable Chalmers pulled up behind her, turning off the siren but leaving the lights activated. Constable Chalmers then reached over to grab the Alcolmeter from the centre console. He opened his door and stepped out. -- 3 of 11 -- 1-4 JUDGMENT 1 10 20 30 40 50 60 He then saw the appellant slowly pull away and drive down River Terrace which at that point turns into Leopard Street. Constable Chalmers then re-entered the police vehicle, re- activated the siren and followed the appellant, again maintaining a distance of about 20 metres from her. There were no other vehicles between the appellant's vehicle and the police vehicle. Both vehicles proceeded down Leopard Street across the intersections at Vulture Street and Stanley Street and on to the Pacific Highway for a distance of about two kilometres. The traffic was very light. Constable Chalmers said that they were proceeding at approximately the speed limit which was 90 kilometres an hour. He said that he maintained a 20 metre gap between the two vehicles and that the lights and siren on the police vehicle remained activated throughout. Constable Chalmers gave evidence that the appellant had many opportunities to safely stop. Constable Chalmers moved into the middle lane and pulled alongside the appellant and Constable Taylor made an indication to the appellant to pull over. The appellant pulled over after the Cornwall Street off-ramp and Constable Chalmers pulled over behind her. Constable Chalmers then had a conversation with the appellant. He said, "What are you doing? We have been trying to intercept you since the start of River Terrace. Did you not see us behind you?" -- 4 of 11 -- 1-5 JUDGMENT 1 10 20 30 40 50 60 The appellant replied to the effect, "Yes, but I didn't know you wanted me to pull over. I've done nothing wrong. What is the problem?" Constable Chalmers then explained that he wanted to perform a random breath check and a licence check. The appellant stated that she had not been drinking and that she had a current licence. Constable Chalmers said that the police did not know that she had not been drinking and informed her that information had been given to Police Communications that a pursuit was occurring. Constable Taylor then spoke to the appellant saying, "What are you thinking? Why didn't you pull over?" The appellant replied, "I didn't know you wanted me to pull over. I haven't been drinking. I am a doctor." Constable Taylor replied by explaining that she did not care that the appellant was a doctor and that when the appellant stopped and then drove off again after Constable Chalmers had got out of the police vehicle, that they thought she was not going to stop. Constable Chalmers then performed a breath test on the appellant and asked to see her licence. Constable Taylor performed a licence check. Both procedures produced no adverse result. Constable Chalmers then explained to the appellant that she would be receiving a ticket for failing to -- 5 of 11 -- 1-6 JUDGMENT 1 10 20 30 40 50 60 stop and she became upset saying that it was unfair. Constable Chalmers then activated a recording device. Constable Chalmers said that during the further conversation he had with the appellant that she said that if he had wanted her to stop he should have driven his vehicle in front of hers. The appellant said that she had been living in Australia for 17 years. She said, "I didn't think you wanted me to stop." In relation to the first occasion when she did in fact stop along River Terrace, but did not remain stopped, the appellant said, "I thought you wanted to go past." And the police replied to the effect, "We didn't go past you. We pulled up behind you and you then took off." The particulars of the charge relied upon by the prosecution are set out at page 5 of the transcript. The Prosecutor stated, "So, really the offence probably starts - it is hard to put a point, it probably starts from where she hasn't remained and taken off and the blue light and siren is on - then on again and it is nearly a couple of kilometres after that before they get her." -- 6 of 11 -- 1-7 JUDGMENT 1 10 20 30 40 50 60 Section 60, Police Powers and Responsibilities Act 2000, provides: (1) A police officer may require the person in control of a vehicle, other than a train or a vehicle pulled by an animal, to stop the vehicle for a prescribed purpose. (2) The person must comply with the requirement, unless the person has a reasonable excuse. (3) The prescribed purposes are as follows - (a) for enforcing a transport Act; (b) to check whether the vehicle or person is complying with a transport Act; (c) for monitoring or enforcing a liquor provision; (d) for enforcing a contravention of law involving putting, dropping and leaving litter on a public place from a vehicle; (e) to conduct a breath test or saliva test; (f) to investigate the emission of excessive noise from - (i) a motor vehicle on a road or in a public place; or -- 7 of 11 -- 1-8 JUDGMENT 1 10 20 30 40 50 60 (ii) a motorbike being driven on a place other than a road; (g) to give a noise abatement direction to the person responsible for the emission of excessive noise from (i) a motor vehicle on a road or in a public place; or (ii) a motorbike being driven on a place other than a road; (h) to impound a motor vehicle under chapter 4." The Act does not specify the manner in which a police officer may direct a motorist to stop. In this regard section 60 may be contrasted with section 748 which sets out the manner in which a police officer may give a driver a direction to stop. However that provision has no application to the present circumstances. The means by which a police officer requires a motorist to stop will depend upon the circumstances. A police vehicle driving behind another motor vehicle with lights and siren activated would be understood by most motorists as a requirement to stop. In the circumstances of this case the appellant did in fact stop her motor vehicle on River Terrace before driving away. -- 8 of 11 -- 1-9 JUDGMENT 1 10 20 30 40 50 60 The term "stop" is defined in the dictionary, schedule 6, as "stop, of a vehicle or animal, includes requiring it to remain stationary for the time reasonably necessary to enable a function or power under this or another Act to be exercised." The only authority on the relevant provision to which counsel drew my attention is the decision in Rodgers v. Smith, D1216 of 2002, District Court Brisbane, 28 October 2002, a judgment of Judge Forno QC. However the decision is of limited assistance because the ruling of his Honour contains no reasoning and the facts are a little difficult to discern. The issues for determination are whether, in the circumstances of this particular case, the police action constituted a requirement to stop and whether the prosecution negatived the mistake of fact defence in section 24 Criminal Code. The factors that lead me to conclude that the police conduct did constitute a requirement to stop are the following: • The police activated the lights and siren of the police vehicle and travelled a distance of 20 metres behind the appellant's vehicle. • There was no other traffic on River Terrace. • After the appellant drove from River Terrace the police once again followed her vehicle travelling 20 metres -- 9 of 11 -- 1-10 JUDGMENT 1 10 20 30 40 50 60 behind having re-activated the lights and siren of the police vehicle. As I have said whether a requirement to stop is effective may depend upon the circumstances of the case but having regard to the absence of other traffic and the way in which the police drove behind the appellant's vehicle I have reached the conclusion that their actions did, in fact, amount to a requirement to stop. Moreover the appellant's conversation with the police after she eventually stopped after the Cornwall Street off-ramp indicates that she was aware of the presence of the police behind her. She claimed that she was not aware that she was required to stop. This led the Magistrate to consider section 24 Criminal Code. In this regard the Magistrate's reasoning is as follows: "The defence are not saying that she operated under mistake of fact, but I will deal with it anyway. She made a mistake, as I understand the course of the evidence, by driving off and in the second phase not stopping. It may perhaps have been an honest mistake, although that may be in some doubt, given that she thought, as I said, she thought the police wanted to go past her yet she drove off when they were still behind her whilst their lights were still on. And I can't be satisfied that it was a reasonable mistake either given that circumstance, and that is on her own recorded version. -- 10 of 11 -- 1-11 JUDGMENT 1 10 20 30 40 50 60 Then to drive for about two kilometres down the road with little or no other traffic about thinking that the police were just wanting to go past, and which they never did at any stage, and not pull over or stop, irrespective of whether it is on the freeway or not, there seems, on the evidence to have been ample opportunity for her to pull over, is not reasonable in the circumstances." In my view the Magistrate was correct to find that the defendant was guilty and, accordingly, the appeal is dismissed. ----- -- 11 of 11 --