Eggmolesse v Queensland Police Service [2007] QDC 350

DISTRICT COURT OF QUEENSLAND CITATION: Eggmolesse v Queensland Police Service [2007] QDC 350 PARTIES: DAVID BRIAN EGGMOLESSE (Appellant) v QUEENSLAND POLICE SERVICE (Respondent) FILE NO/S: 136 / 2006 DIVISION: Appellant PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Beenleigh DELIVERED ON: 20 December 2007 DELIVERED AT: Beenleigh HEARING DATE: 5 November 2007 JUDGE: Dearden DCJ ORDER: Appeal dismissed. CATCHWORDS: Vehicles in traffic – appeal – offences – alcohol and drug related – “in charge of” vehicle LEGISLATION: Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(1), 124(1)(t), 149(1)(t) Traffic Act 1949 (Qld) ss 16(1), 49(1)(t) CASES: Dansie v Kelly; ex parte Dansie [1981] Qd R 1 Brookes v Spasovski [2004] QDC 471 Wynne v Campbell; ex parte Campbell [1968] QWN 7 Taylor v Hungin [2005] QDC 351 Atkinson v Fox, Unreported, District Court, No. 69/1992, Kimmins DCJ COUNSEL: Mr H Fong for the appellant Ms S Farnden for the respondent SOLICITORS: Legal Aid Queensland for the appellant Director of Public Prosecutions for the respondent -- 1 of 5 -- 2 Introduction [1] This is an appeal against conviction in respect of a single count of being in charge of a motor vehicle on a vacant block (Pacific Motorway, Loganholme) whilst under the influence of liquor or a drug. After a trial before the learned Magistrate at Beenleigh which proceeded on 15 and 16 November 2006, and 1 and 15 December 2006, the appellant was convicted of an offence which alleged:- “That on the 11th of September 2005 at Loganholme… [the appellant] whilst he was under the influence of liquor or a drug, was in charge of a motor car namely [a] motor vehicle elsewhere than on a road namely [a] vacant block Pacific Motorway Loganholme…”. The defendant was convicted and fined the sum of $720 in default 12 days imprisonment, and was allowed one month to pay. The defendant was disqualified from holding or obtaining a driving licence for a period of nine months. Magistrate’s Findings [2] The learned Magistrate heard evidence for the prosecution from three police officers, Sergeant Bruce, Senior Constable Hallam and Acting Senior Sergeant Tracey. Evidence for the defence was given by the appellant and his sister Norma Eggmolesse. The learned Magistrate, while appropriately recognising that the defendant had no onus of proof, accepted the defendant‟s version of events as being “credible on the whole”.1 In that respect, the learned Magistrate accepted the defendant‟s version of events where it differed on relevant matters with the evidence given by prosecution witnesses. [3] The Magistrate‟s relevant findings of fact were as follows:-2 “I accordingly find that [the appellant], having consumed alcohol both on his birthday the previous day and the day of the incident, was at his mothers when he responded to a telephone call from his sister to come and put fuel into a stranger‟s car. [The appellant] walked 1 Decision T.3 2 Decision T.4 -- 2 of 5 -- 3 there from his mother‟s place, as it was only a short distance away. Only [the appellant‟s] sister, a previous passenger in that vehicle, was present. Having been at the bonnet putting fuel in the carburettor, and placing a battery into the vehicle, [the appellant] went to the driver‟s side, leant into the car to endeavour to see if the vehicle would start, to find that there were no keys in the ignition. I do not consider [the appellant] started the vehicle, though he conceded that there were other ways that he might have done so, despite the lack of keys. Police attended at about this time. [The appellant] agreed he was asked to give a breath test and show identification. [The appellant] was largely compliant. He later returned a breath analysis and there is an exhibit before the court which demonstrates that that was 0.15%.” [4] The learned Magistrate then noted in her decision that although she did not have a transcript of previous evidence, she‟d had the benefit of listening to relevant portions of the evidence on tape which:- “… confirmed the following to be [the appellant‟s] evidence in relation to going to the driver‟s door. [In] evidence in chief [the appellant] says after that point [i.e. going to the driver‟s door] „I leant into the car, no key‟. In cross-examination [the appellant] refers variously to „I leant in, I was leaning in, I opened the door and leant in, no keys in the ignition‟. And interestingly at one point too, [the appellant] says „I hopped back out‟. Nothing particularly turns on that. Miss Norma Eggmolesse was asked „Do you recall whether he tried to start the car?‟ and she said „No‟. So that was not particularly helpful, if indeed that‟s the question that she has (sic) actually answering and one has to assume that it is. … Whilst up to that point I consider [the appellant] would have been successful, in my view, in rebutting the presumption of being in charge… on his own evidence – the evidence that I have just referred to, ultimately I am satisfied beyond a reasonable doubt that he was in charge. His intent and attempt to at least turn over the motor of that vehicle are sufficient at that point, I find, to put him in charge and he has attempted, to go back to the relevant words of [Transport Operations (Road Use Management) Act 1995] s 124(1)(t), he has attempted to use the vehicle as I find. And accordingly I find him guilty.”3 3 Decision T.7 -- 3 of 5 -- 4 The Legislation [5] Transport Operations (Road Use Management) Act 1995 (“TORUMA”) s 79(1) provides:- “Any person who while under the influence of liquor or a drug – (a) Drives a motor vehicle, tram, train or vessel; (b) Attempts to put in motion a motor vehicle, tram, train or vessel; (c) Is in charge of a motor vehicle, tram, train or vessel; is guilty of an offence and liable to a penalty not exceeding 28 penalty units or to imprisonment for a term not exceeding 9 months.” [6] Transport Operations (Road Use Management) Act 1995 s 124(1)(t) provides:- “Any person who appears, acts, or behaves as the driver, rider, or person having the possession, custody, care or management of any vehicle, tram, train, vessel or animal, or who uses or drives, or attempts to use or drive the same shall be presumed to be the person in charge thereof whether the person is or is not the real person in charge, and it is immaterial that by reason of circumstances not known to such person it is impossible to drive or otherwise use the same.” Case Law [7] In Wynne v Campbell; ex parte Campbell4, it was held that the provisions of TORUMA s 124(1)(t)5 are “an evidentiary provision and raise a presumption from which it may be held that the person involved is guilty of an offence under [Traffic Act]s 16(1) [now TORUMA s 79(1)]. It is not a substantive provision”. In Dansie v Kelly; ex parte Dansie [1981] Qd R 1, Dunn J noted6 (obiter as it was not necessary to decide the appeal) that “the question whether a person is in charge of a motor vehicle at a given time is a question of fact, and every case must be decided on its own facts”. Dunn J made those remarks cognisant of the provisions of Traffic Act s 49(1)(t) (the pre-cursor (in identical terms) to TORUMA s 124(1)(t)). In Brookes v Spasovski [2004] QDC 471, McGill DCJ held that the fact the respondent in that 4 [1968] QWN 7 5 Formerly Traffic Act 1949 s 49(1)(t) 6 [1981] Qd R 1, 8 -- 4 of 5 -- 5 case “had no intention of driving [the car] is… on the authorities irrelevant [and]… what matters is that [the respondent] was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person.” In addition, it is clear that a person can be in charge of a motor vehicle without the keys.7 Conclusion [8] The Magistrate found that the appellant‟s admission that he intended to attempt to at least turn over the motor of the vehicle was sufficient to place him in charge of the vehicle. In my view, the appellant has clearly attempted to “use” the vehicle, having put fuel in the carburettor and placed a battery into the vehicle, before leaning in to the driver‟s side of the car to see if it would start. The appellant conceded in evidence that there were other ways that he might have started the vehicle despite the lack of keys. In my view the learned Magistrate was entitled in those circumstances to find that the appellant was “in charge” of the vehicle and consequently was guilty as charged. [9] Accordingly, the appeal is dismissed. Costs [10] I will hear the parties on the costs. 7 Taylor v Hungin [2005] QDC 351 (Samios DCJ) and see Atkinson v Fox, Unreported, District Court, No. 69/1992, Kimmins DCJ -- 5 of 5 --