Berbic v Steger [2005] QDC 294

DISTRICT COURT OF QUEENSLAND CITATION: Berbic v Steger [2005] QDC 294 PARTIES: ZLATAN BERBIC Appellant v GRAHAM BRADLEY STEGER Respondent FILE NO/S: D4619 of 2004; MAG-00135708/04(6) DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Holland Park DELIVERED ON: 14 October 2005 DELIVERED AT: Brisbane HEARING DATE: 13 September 2005 JUDGE: McGill DCJ ORDER: Appeal allowed, conviction quashed, verdict of acquittal entered CATCHWORDS: CRIMINAL LAW – defences – emergency – test for – whether made out – unlicensed driving Criminal Code section 25 Bailey v Costan [1993] QCA 404 – distinguished. M v R (1994) 181 CLR 487 – applied. R v Free [1983] 2 Qd R 183 – applied. R v Pius Piane [1975] PNGLR 52 – considered. R v Warner [1980] QdR 207 – considered. Strudwick v Russell (1989) 9 MVR 15 – distinguished. Zuccala v R (1991) 14 MVR 466 – considered. COUNSEL: P.D. Sheridan for the appellant M. Hungerford–Symes for the respondent SOLICITORS: Director of Public Prosecutions for the respondent [1] The appellant was charged on summons that on 8 August 2004 he drove a motor car on Pinelands Road, Sunnybank Hills when he was not the holder of a licence authorising him to drive that vehicle on that road, and was disqualified by a court from holding or obtaining a drivers licence. Following a trial he was convicted of -- 1 of 14 -- 2 that offence on 18 November 2004. There was no dispute that the appellant was driving a motor car on that road without a licence and while subject to disqualification, but he raised a defence under section 25 of the Criminal Code. The magistrate found the prosecution had excluded that defence beyond reasonable doubt. The appellant now appeals from that conviction. [2] The Notice of Appeal identifies the ground of appeal as simply: “Given that the learned magistrate found that the appellant drove whilst transporting his ill passenger to hospital to receive urgent medical attention, the learned magistrate erred in law by not determining that such was an ‘extraordinary emergency’, in respect of which the appellant was not criminally responsible for the charge of driving a motor vehicle without a licence when disqualified by a court.” The evidence [3] The magistrate accepted the evidence of the appellant’s passenger, his girlfriend, which he described as not having been challenged in any particular way: p2. She said that on the relevant evening she had been with the appellant at her house, and then at about 9 pm she drove them in his vehicle1 to an internet café at Sunnybank Hills: p29. At about 11.30 pm she obtained a meal at a fast food outlet, which she ate back at the internet café, and stayed there with the appellant until, about an hour later, she became really sick. She felt nausea and started vomiting. She went to a toilet which was outside the café, presumably within the shopping centre, where she said she was throwing up for about half an hour. She said the pain became worse and she was crying and screaming: p30. She said she phoned her father to come and get her but he was unable to because he was himself not well, then she asked her sister who said she could not be there for an hour. She said she was in so much pain she just wanted to go home and she was pleading with the appellant to take her because she just wanted to get out of there. She said she was continually asking him to do it, and he started to drive her home. On the way, she had really sharp pains in her stomach and asked him to take her instead to a hospital. Before she reached there, however, she felt as though she was going to throw up again, and asked the appellant to pull into a service station, which required him to do a U-turn. The appellant did so, she got out and went to the toilet where she was sick again2 . [4] The complainant said that when he saw the appellant’s vehicle do the U-turn, he followed it to speak to the driver in relation to a random breath test and a licence check, which occurred at the petrol station: p3 and p4. [5] A map of the area was before the magistrate as Exhibit 1. The internet café was at the Sunnybank Hills shopping centre, which is at the south end of Callum Road. The appellant’s passenger lived in Chartreuse Street, which is only about one kilometre away from the shopping centre, a little to the east of north, although the appellant was travelling via major roads rather than back streets so that, had he completed that journey, he would have driven for about one and a half kilometres. 1 She had been using it as her car, having sold her car: p33. 2 Her evidence that she was sick again was supported by the station operator (p40) and appears to have been accepted by the magistrate (p4), although contradicted by the police evidence: p14 and p17. -- 2 of 14 -- 3 Callum Road continues north as Pinelands Road, which in turn continues north as Mains Road after it intersects Beenleigh Road at Sunnybank. The magistrate found (p4) that after the vehicle entered Pinelands Road, but before it turned to the right into Hellawell Road in order to get to the passenger’s home, the request came to be taken to the hospital, near a point marked “M” on Exhibit 1. The relevant hospital was the QEII hospital, which was not far to the north; from this point it required a journey of about four kilometres north along Pinelands Road and Mains Road, followed by one and a half kilometres to the west along Kessels Road. [6] That the passenger was throwing up was confirmed by the operator of the internet café (p43), and by the operator of the petrol station (p40), both of whom gave evidence. The passenger was left at the petrol station by the police: p17. Apparently she was ultimately collected by her sister, who took her to hospital where she received treatment for food poisoning and was allowed to go home. The magistrate’s reasons [7] The magistrate noted that the appellant was driving on Callum Road, and was driving before his passenger had said she wanted to go to the hospital and at a time when it was his intention to take her home: p4. This was a correct observation, but the magistrate does not appear to have appreciated the consequences of it, or at least they do not emerge in his subsequent discussion. Strictly speaking the offence charged was driving in Plainlands Road rather than Callum Road, but that is in itself of no consequence; if the point had been taken, the matter could have been dealt with by amendment, and in any event there was no relevant distinction between driving in Callum Road and the initial driving in Plainlands Road. But in my opinion the driving does fall logically into two separate parts, that part which began at the shopping centre when the appellant began to drive his passenger to her home, and that part which began in Plainlands Road when the appellant began to drive his passenger to the hospital. The magistrate appears to have appreciated at this point that it was necessary for the two different parts to be considered, but thereafter there was no separate consideration of them. [8] The magistrate went on to find that the passenger’s illness was not in fact life threatening, although he accepted that she was feeling very ill and displaying symptoms which an ordinary person would be concerned about. He also referred to evidence from the appellant, which was apparently accepted, that he knew that she had some food allergy, though he did not know any details of it and did not know how it affected her: p19. [9] It was submitted for the appellant that the prosecutor had conceded that the situation confronting the appellant was an extraordinary emergency. That is not referred to in the magistrate’s reasons, although it is consistent with his not having made any express finding as to whether or not the situation did amount to an extraordinary emergency. He appears, however, to have assumed that that was the case, because at page 5 he posed the question that had to be answered by reference to the second limb of section 25, “Would an ordinary person with ordinary powers of self control reasonably be expected to act otherwise or not?” -- 3 of 14 -- 4 [10] He accepted that the appellant did not know what was wrong with her except that she was very ill. The magistrate acknowledged that the test was an objective one but had to be looked at in the light of the circumstances the appellant found himself in. He accepted that the appellant was very concerned for her welfare and he could not really be expected to know whether or not her life was in danger; in context this amounts to a finding that the prosecution had not excluded his having honestly and reasonably but mistakenly believed that her life was in danger. [11] The magistrate noted that the prosecution posed as reasonable alternatives calling an ambulance, calling a taxi, or waiting for her sister to arrive. The magistrate found that in the circumstances it would be reasonable to call an ambulance, and found that an ordinary reasonable man, faced with what the defendant was faced with, would simply have called an ambulance rather than drive while disqualified. He noted there was no evidence that she needed to go to hospital faster than an ambulance could have taken her, and commented at page 6 that the appellant had “made the wrong choice”. Accordingly he concluded that the prosecution had proved beyond reasonable doubt that an ordinary reasonable person would not have driven but have called an ambulance. On this basis, the defence was negatived and the appellant convicted. Defence of emergency [12] Section 25 of the Criminal Code provides: “Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.” [13] It is noted in Carter’s Criminal Law of Queensland, para 25.1, that this was said to be as much a rule of common sense as a rule of law, giving effect to the principle that “no man is expected, for the purposes of the criminal law, at all events, to be wiser or better than all mankind”3 . The magistrate correctly appreciated that, the possible defence having been raised by the evidence, the onus was on the Crown to exclude it beyond reasonable doubt. [14] Section 25 raises two issues, whether there is relevantly an extraordinary emergency, and, if so, whether an ordinary person possessing ordinary power of self control could not reasonably be expected to act other than as the defendant did act. As to the first limb, it is recognised that the emergency could be factual or the product of an honest and reasonable but mistaken belief4 . There is not much authority on just how serious an extraordinary emergency must be. Presumably, it must be more than an ordinary emergency, and something which one would not expect to occur very often. 3 Sir Samuel Griffith, note to the draft Criminal Code; Webster and Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207 at 217 4 R v Webb [1986] 2 Qd R 446 at 449 -- 4 of 14 -- 5 [15] It has been said that it involves a good cause to fear death or serious physical injury5 , but it has also been said that it involves circumstances where there was a likely danger to life or property6 . It is perhaps not entirely clear that the magistrate was not satisfied that the Crown had shown that there was not an extraordinary emergency in the present case. If, as seems to me to have been the case, that was the attitude of the magistrate, I think it was correct and justified in the circumstances. I do not think it is appropriate to say that merely because there was not an immediate medical risk to the life of the appellant’s passenger, there was not an extraordinary emergency. In my opinion there can be an extraordinary emergency generated by a medical condition which is not actually life threatening, if it is otherwise sufficiently distressing. [16] In my opinion whether there is an extraordinary emergency is not something which should really be decided in isolation from the issues raised in relation to the second limb. That is because the section refers to “such circumstances of…extraordinary emergency that an ordinary person…could not reasonably be expected to act otherwise.” Accordingly, the “circumstances of extraordinary emergency” which give rise to the exclusion of criminal responsibility are whatever circumstances of extraordinary emergency are such that an ordinary person possessing ordinary powers of self control could not reasonably be expected to act otherwise. Accordingly, the degree of emergency which would be capable of excusing criminal conduct under this section must, in my opinion, be related to the seriousness of the criminal conduct involved7 . The magistrate may well have approached the matter in this way; finding that there was in the circumstances not such an extraordinary emergency as to justify the appellant’s driving the vehicle himself rather than calling for an ambulance to take the passenger to hospital. [17] One matter that has struck me, which arises from the reasons from the magistrate, is whether it is sufficient to exclude the operation of section 25 if there was available in the circumstances a reasonable alternative course of action available. The reasons on page 5 seem to me to suggest that approach, although it must be said that the second complete paragraph on page 6 suggests a different approach. It occurs to me that there may well be a difference between the question of whether in the prevailing circumstances an ordinary person possessing ordinary powers of self control could reasonably have acted in the way the defendant did act, and the question of whether in the circumstances an ordinary person possessing ordinary powers of self control would necessarily have acted as the defendant did. This is not a point which appears to have been discussed in the authorities, or at least those at which I have looked, but for what it is worth, it seems to me that, to use the expression “could not reasonably be expected” means that, in order to negative the defence, the tribunal of fact must be satisfied beyond reasonable doubt that in such circumstances the ordinary person could reasonably be expected to act otherwise. Accordingly, if in such circumstances it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the accused did, the defence would not have been excluded 8 . 5 Larner v Dorrington (1993) 19 MVR 75 at 79, citing Carter’s Criminal Law of Queensland. 6 Dudley v Ballantyne [1998] WASCA 198, 28 MVR 209, a case where a defence under section 25 was upheld on appeal; McHenry v Stewart Full Court of Western Australia, unreported 14.12.76), referred to and followed in Dunjey v Ross [2002] WASCA 14. 7 A question of proportionality is involved; Dunjey v Cross (supra) at [42]. 8 This approach seems to be supported by the passages from O’Neill and Pius Piane cited below. -- 5 of 14 -- 6 [18] It may be that in this analysis I am introducing a greater degree of subtlety than was exposed in the argument before the magistrate, or indeed before me. It may be that the magistrate’s finding on page 6 went far enough to satisfy this test, by concluding that it would have been reasonable to expect an ordinary person to call an ambulance rather than to drive while disqualified, but it would have been better to focus on whether it was reasonable to expect that an ordinary person could have acted as the accused did. Cases [19] Reference was made by the magistrate to Strudwick v Russell (1989) 9 MVR 15. That was a case where section 25 was raised by way of defence to a charge of dangerous driving9 . The appellant admitted that he had driven at high speed and on at least one occasion through a red light over a distance of approximately 20 kilometres between Wellington Point and an intersection in Wishart where he crashed his vehicle. The appellant’s case was that he and another person had been threatened with violence by another, and that they had left Wellington Point in the vehicle in order to avoid that other, who had nevertheless pursued their vehicle with a further or continuing threat of actual violence, and that he was driving at high speed in order to attempt to escape this other person. [20] In considering whether the magistrate had erred in law in his approach to the application of section 25, Williams J 10 at page 19 said: “Even if the chase itself did constitute a continuing threat of violence then the appellant was only entitled to act as a reasonable man would in order to avoid it. Apart from the fact that on one occasion [the other driver] drew alongside and called out ‘pull over’ with an angry look on his face, there was nothing in the evidence to suggest any actual continuing threat of violence during the chase. Given the distance over which the appellant objectively drove dangerously, and given the opportunities he had along the way of seeking assistance11 the magistrate was fully entitled to conclude (indeed in my view he could not reasonably have found otherwise) that the appellant exceeded the limit which the law placed on conduct excusable by operation of section 31(3) of the Code.” [21] His Honour no doubt intended that the same applied to the limit on the conduct excusable by the operation of section 25. In that case, the court was clearly of the view that there was nothing like a sufficient emergency present to justify the sort of dangerous driving in which the appellant had engaged. This involved driving at speeds of up to 160 kilometres per hour late on a Saturday night on a road that was 9 It occurs to me that dangerous driving is a more serious offence than driving while disqualified, in effect a prohibition from driving a motor vehicle imposed by way of penalty, so that a greater degree of emergency might be expected to be required to justify such conduct, probably varying depending on the extent of the danger to relevant road users arising from such conduct. 10 As His Honour then was, with whom the other members of the court agreed 11 His Honour had earlier noted that the appellant had driven past a number of all night service stations without seeking assistance there; it may be that in 1989 there was more assistance to be had at an all night service station than might be expected these days. -- 6 of 14 -- 7 sometimes wet when other traffic was reasonably likely to be about, and driving at high speed through a red light. [22] In R v Warner [1980] QdR 207 the accused, while driving late at night along Ipswich Road, became aware that another vehicle had come up behind him, and was being driven very close to the rear of his vehicle, and continued to do so both when the defendant reduced his speed to well under the speed limit, and when he increased it to significantly above the speed limit. He said that he became scared of the other driver’s intentions, and drove at high speed in an attempt to escape. At one point, the other vehicle actually bumped into the rear of his vehicle. The Court of Criminal Appeal held that it was an error for the judge to have directed the jury in a way which would have excluded inter alia consideration of a defence under section 25. Andrews J with whom the other members of the court agreed, said that the evidence raised matters which called into question such a defence, and that the belief in the existence of the state of things was relevant to section 25. A new trial was ordered. His Honour said: “There is quite a significant body of evidence to the effect that a rather terrifying situation may have been created by the driver of the other vehicle and that the accused may have been acting in response to it from fear and to avoid the risk of harm at the hands of the other driver.” Bench book [23] In my opinion, useful guidance as to the correct approach to the test under section 25 is afforded by the Bench book. That contains a suggested form of direction to a jury where a defence arises under section 25. After dealing with the issue of whether the circumstances did not amount to a sudden or extraordinary emergency, the proposed direction continues on the following terms12 : “If the prosecution has not satisfied you that the defendant was not acting under the stress of an extraordinary emergency, are you satisfied beyond reasonable doubt that his reaction in the circumstances was outside what you could reasonably expect of an ordinary person with ordinary powers of self control? A person in an extraordinary emergency may make a wrong choice. But you must look at the situation as it presented itself on the moment. The defendant is not expected to be wiser or better than an ordinary, reasonable person in the same circumstances; and you will appreciate that a person in an emergency cannot always weigh up and deliberate about what action is best to take. He must act quickly and do the best he can. If you consider that an ordinary person with ordinary powers of self control could not reasonably have been expected to act differently or if the prosecution has not satisfied you beyond reasonable doubt of the contrary, you must acquit.” 12 Omitting the references to sudden emergency. -- 7 of 14 -- 8 [24] The magistrate at page 6 said of the appellant that, when he decided to drive his passenger home, “The fact of the matter is that he made the wrong choice.” As I understand the draft summing up in the Bench book, it is to the effect that an accused is not to be condemned simply on the basis that in the agony of the moment, and without the opportunity to weigh up and deliberate about what action is best to take 13 , he made a wrong choice. It seems to me that the approach adopted by the magistrate is not consistent with the approach indicated in this draft direction in the Bench book. [25] Of course, the Bench book is not in itself a work of authority14 although a number of particular passages in it have been expressly approved by the Court of Appeal already. Nevertheless, where it appears that there has been an approach adopted different from that set out in the Bench book, that suggests at least that there should be careful consideration about whether there has been an error of law. [26] This part of the suggested summing up appears to be based on something quoted in the judgment in the Western Australian Court of Appeal in Zuccala v R (1991) 14 MVR 466. In that case, the accused alleged that while driving towards another vehicle, it had come suddenly onto its incorrect side into his path. Faced with this, in an attempt to avoid a collision, he swerved to the right but there was still a collision. In the course of the summing up on the Western Australian equivalent to section 25, which is in the same terms, the trial judge said, among other things: “Of course, a person in a sudden emergency may make the wrong choice, but you must look at the situation as it presented itself on the moment to the accused man. He is not expected to be wiser or better than an ordinary, reasonable person in the same circumstances and you will appreciate a person in an emergency cannot always weigh up and deliberate about what action is best to take.” [27] That, of course, was a case of sudden emergency rather than extraordinary emergency, but in my opinion these considerations apply to some extent in the latter situation as well. The summing up was not criticised by the Court of Criminal Appeal, although whether it was correct was not directly in issue. Ultimately, the court held that there was evidence before the jury on the basis of which it would have been entitled to reject the factual basis for the defence, and so exclude it. [28] Section 25 was also considered by Lalor J of the Supreme Court of Papua New Guinea in R v Pius Piane [1975] PNGLR 52. In that case, the accused while driving a utility was startled by shouting and loud banging on the roof of the cabin. He turned his head to ascertain the cause, and while doing so (in a period of only a couple of seconds) his vehicle ran off the road and ultimately overturned. His Honour said15 , among other things, at page 56-7: 13 The appellant gave evidence that because of his girlfriend’s state he was panicking (p27) and that it seemed to him that it was just something he had to do: p21 14 Happily, it does not satisfy the traditional test referred to in Greenlands Ltd v Wilmshurst (1913) 29 TLR 685 at 687 per Vaughan Williams LJ. 15 In giving reasons for his verdict in a criminal trial without a jury. -- 8 of 14 -- 9 “Objectively of course, and with hindsight, it is easy to say that he should have applied his brakes, stopped the vehicle and then looked around. But this is merely being wise after the event…The question to be decided, as a question of fact, is whether the driver in acting as he did, acted only as an ordinary person possessing ordinary power of self-control would have acted…I am unable to be satisfied beyond doubt that such a reaction was outside the normal reaction of an ordinary person possessing ordinary self-control, and accordingly find the accused not guilty.” [29] This is similar to the approach adopted in other areas where a comparison is made with the behaviour of an ordinary person, for example, by Lush J in a charge to a jury16 quoted by Starke ACJ in the Full Court on Appeal, in R v O’Neill [1982] VR 150 at 153: “I do not need to tell you that ordinary men come in all shapes, sizes and temperaments…We are looking at the whole class of ordinary people and the question is whether what was done was beyond the range of activities that you might expect as a reaction in the circumstances of an ordinary person.” [30] The ordinary person means of course an ordinary person in the position of the accused, that is, someone who has lost his licence and been disqualified from obtaining one for a particular period by way of punishment, and indeed one who had not only the power of self control of the ordinary person, but also the fortitude and sound judgment of the ordinary person17 , with the degree of respect for the law that that person would have. Analysis [31] Central to the magistrate’s conclusion was the finding that to call an ambulance was a reasonable course of action, and the one that an ordinary, reasonable person in his position would have taken. When the alternative of calling an ambulance while at the café was put to the appellant in cross-examination, his responses were that his passenger didn’t want him to, and that he did not know how long it would take an ambulance to come whereas he was there at the time, so that it would have taken more time to go by ambulance: p27. There was evidence that after the police had intercepted the appellant at the petrol station the police asked his passenger whether she wanted them to call an ambulance to go to the hospital and she had said she did not: p6. She said in her evidence that she did say she did not want an ambulance: p30. Under cross-examination she said that she did not want an ambulance because she was not a subscriber to the ambulance service and she thought the ambulance could be really expensive, and may cost $700: p36. [32] By the time of the events in question, ambulance services were free, the financial arrangements of the ambulance service having been changed, but not all that long ago it certainly was the case that if a person was not a subscriber to the ambulance 16 This was actually about whether an ordinary person might have reacted in the same way to some provocation as did the accused. 17 See O’Regan “New Essays on the Australian Criminal Codes” page 55. -- 9 of 14 -- 10 service, calling an ambulance could be a very expensive step, and it is understandable that a person of limited financial means might be reluctant to call an ambulance for this reason, even though she needed medical attention. In my opinion a person could easily overlook the fact that the risk of a large bill had ceased to be a problem, particularly in circumstances where she was very ill, which would not have assisted in the clarity of her reasoning. The magistrate did not find that this was not her genuine belief at the time. [33] The argument was advanced to me that if the passenger was really ill the appropriate and reasonable response was to call an ambulance, and that if she was not sick enough to justify that, then it was not really an extraordinary emergency. That is a convenient dichotomy from the point of view of the prosecution, but I think it is superficial and do not accept it. Apart from anything else, even if the situation is genuinely life threatening, calling an ambulance may well not be an appropriate response. A person who has taken ill may have medication which will deal with the situation available at home, but may not be carrying it, and in such circumstances, particularly if home is significantly closer than any hospital, it would obviously be more appropriate to go home and get the medication rather than go to hospital, by ambulance or any other means of transport. There is also the situation in Riley v Fuchs [2001] QDC 85, where the respondent suffered a hypoglycaemic attack, which was at least potentially life threatening, and where the appropriate response was simply to eat something. In that case, the respondent committed the offence while proceeding as quickly as possible to a place where he could get something to eat. In such a situation, getting food is a much more appropriate response than getting an ambulance to go to hospital. [34] There are also considerations about the relative efficiency of the different modes of transport. In some circumstances, conveyance by ambulance may be quicker, but it could easily be slower, sometimes much slower, depending on the circumstances. Apart from all of this, there is the consideration of the proportionality between the emergency and the response. The need to take someone who is sick to hospital may well be a sufficient emergency to justify driving while unlicensed, but, depending on how sick the person is, may not be a sufficient emergency to justify driving dangerously, or for that matter taking over a car with threats of violence to the driver. No doubt there are circumstances where the availability, or at least presumed availability, of transport to hospital by ambulance will be a reasonable alternative such that an ordinary person with ordinary powers of self control would not drive whilst unlicensed when that alternative was available, but it is always necessary to focus on the particular circumstance of the individual case. [35] In my opinion the magistrate, in posing the alternative of calling an ambulance, has overlooked the point that he made earlier in his reasons, that the initial intention when the appellant began to drive was not to take the passenger to hospital but to take her home. In these circumstances, the appropriateness of calling an ambulance is bound up in the question of whether it was appropriate to arrange for her to be taken to hospital, notwithstanding that what she wanted at that stage was to be taken home. [36] The first point which arises here is a matter of law, whether there can only be an extraordinary emergency for the purposes of section 25 if a person is faced, or -- 10 of 14 -- 11 honestly and reasonably but mistakenly believes that he is faced, with a life threatening situation. There are cases18 where it has been accepted that a threat to property can be sufficient to give rise to an extraordinary emergency, and in my opinion it necessarily follows from that that the concept is not confined to a life threatening situation. This comes back to the question of proportionality and reasonableness; the seriousness of the emergency must be weighed against the seriousness of the criminal conduct in question, by reference to the standard of the ordinary person with ordinary powers of self control. [37] Food poisoning can be life-threatening, but generally it is not. It is, however, a very distressing condition which makes a person very ill, and physically very weak. There is persistent vomiting, usually continuing with dry retching even after the stomach is empty. Any person in that situation would I think be desperately keen not to be stuck in a public toilet at a shopping centre. But in my opinion, the ordinary response of an ordinary person with a bout of food poisoning would be to want to go home rather than to seek medical attention19 . Food poisoning is very unpleasant, but generally it is just a matter of resting and waiting for the body to recover, while attempting re-hydration. Taking a person with food poisoning home is in my opinion a natural and reasonable reaction. [38] There is also the consideration that home was quite close, only about a kilometre away. They could therefore get there very quickly. There was a parent there, and once she was there, further consideration could be given to whether she needed medical treatment, and if so in what form. If it was appropriate to take her by ambulance to hospital, an ambulance could be called to the house; she would have somewhere where she could rest and be looked after while waiting for it to come, and she probably would not have got to the hospital significantly later than if the ambulance had simply been called to the internet café. Insofar as there was concern about the food allergy20 , she may well have had medication at home to deal with that, if that were the problem. The important consideration from his point of view was that at that stage she was wanting to go home. [39] In my opinion, having to deal with a person who is suffering from the effects of food poisoning is something which is capable of amounting to an extraordinary emergency for the purposes of section 25, at least in the context of the offence of driving while disqualified. In my opinion, in circumstances where a young man is out with his girlfriend late at night, when she becomes violently and persistently ill and is crying and distressed and upset, and begging to be driven home, when she has made attempts to find someone else to take her home without success, and when she only lives about a kilometre away so that she can be driven home quickly and easily, it would require a good deal more self control and respect for the law, and indeed moral rectitude, than might be reasonably expected of an ordinary person with ordinary powers of self-control to deny her that request. In my opinion, an ordinary person in that situation would not ring for an ambulance to take her to 18 Cited in n 5 to [14] above. 19 I may be influenced by my personal experience in this area. On the one occasion I have had food poisoning after a meal, I did not go to hospital but stayed at home. Between bouts of vomiting, all I wanted to do was rest. When my wife developed food poisoning while we were out after a meal, I did not take her to hospital, but took her home. 20 On her evidence her food allergy was different and that was clearly not the problem at this time: p33-4. It is not clear, however, that the appellant knew this. -- 11 of 14 -- 12 hospital, but would simply make the short, quick journey home, although that meant driving while unlicensed. [40] There was also the apparently genuinely held belief that the use of an ambulance would be very expensive. This is also a relevant consideration. Of more significance in the context of the first part of the driving is the possible use of a taxi. That would be less expensive than an ambulance and would take her home. This alternative did not receive much attention at the trial, but it requires consideration. On balance, however, I consider that, given the very short distance involved, the great distress of the passenger and the uncertain wait for a taxi to attend at that time, I am not persuaded that it would be reasonable to expect that an ordinary person would have taken that course rather than drive while unlicensed. [41] In saying this, and bearing in mind the issue of proportionality, I am conscious of the fact that the offence in question is not one which involves any harm or potential harm to any other person, and in that sense is a less serious offence than dangerous driving. It is not even a case of driving while unlicensed because the person concerned had never learnt to drive, which might also endanger people. There was no reason to think that the appellant was not capable of driving safely, the position was simply that he had been prohibited from doing so. [42] The next issue is as to the driving which occurred when he decided to take her to hospital in response to her request and began to do so. That involved rather more driving, since the journey was now several kilometres, but the fact that he was already driving her somewhere is a factor which would, in my opinion, have had an important influence on the reasonable response in such circumstances of the ordinary person. The other consideration is that the hospital was not all that far away, and he would definitely get her there faster if he continued to drive her himself than, say, take her home and then call an ambulance. In addition, the fact that she now wanted to go to hospital would have suggested that her condition was deteriorating, or at least that that was how she felt. Bearing in mind that she had already been persistently violently ill for about half an hour, in my opinion an ordinary person could reasonably have taken the view that it was a matter of urgency to get her to hospital in those circumstances, and on the whole I do not think it could be said that the proposition that an ordinary person possessing ordinary powers of self control would in such circumstances have taken some other course, such as stopping and calling an ambulance or taxi rather than driving her directly to the hospital himself, has been shown beyond reasonable doubt. At the very least, there would have to be some reasonable doubt about that matter. Nature of appeal [43] This raises the issue as to the correct approach to the appeal. It was submitted by the respondent that the correct approach to a finding of fact was that laid down by the Court of Appeal in Bailey v Costan [1993] QCA 404. That was an appeal under section 673 of the Criminal Code which at the time was not an appeal by way of rehearing21 . The appellant’s contention was that the magistrate ought not to have accepted the evidence of the complainant; there was no doubt that if he was entitled 21 R v Free [1983] 2 Qd R 183 at 191. -- 12 of 14 -- 13 to accept that evidence, the appeal would fail. Plainly, a decision of whether or not to accept evidence is a decision on credibility and there are particular limitations, even in the case of an appeal by way of rehearing, on revisiting findings by on credibility22 . Those limitations were much greater in that case where the appeal was not by way of rehearing. The issue was simply wether there was any evidence before the magistrate which was capable of supporting the verdict. That is not, however, the approach in relation to an appeal by way of rehearing. [44] This is an appeal by way of rehearing: Justices Act section 223. It has been said that an appeal by way of rehearing involves rehearing the cause on the date of the appeal, that is, by trial over again on the evidence used in the court below23 . In an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence before the appellate court, the order that is the subject of appeal is the result of some legal, factual or discretionary error24 . In the case of an appeal by way of rehearing, it is necessary for the appeal court to bring its own judgment to bear on the question independent of the judgment of the body under appeal, although a good deal of weight may be attached to the view of that body25 . This applies particularly when the issue is as to the drawing of inferences, where an appellate court is in as good a position as a trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which having been disputed are established by the findings of the trial judge26 . [45] In the present case, there was no evidence before the magistrate as to the reasonable behaviour and response of the ordinary person. That would be, in a jury trial, a matter for the jury, and of course conclusions of facts by a jury are subject also to a particular reverence27 . The magistrate was standing in the place of a jury for the purposes of making this finding of fact and was therefore entitled to act on his own views as to the reasonable behaviour of an ordinary person. Where the magistrate is entrusted with the primary responsibility for determining guilt or innocence, it is not simply a matter of my substituting my opinion on that matter for his. It is a matter for the appellant to persuade me that the magistrate’s decision on that point was wrong. In considering this, I may be assisted by what was said (or possibly what was not said) in the reasons given by the magistrate, if that exposes or suggests any error of approach28 [46] I have not been able to find an authoritative statement on the correct approach to a challenge on an appeal under section 222 to a finding of fact based on a question of community standards, which was not the subject of evidence, by a magistrate. In 22 Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. 23 Builder’s Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at 619, where Mason J with whom two other members of the court agreed also made reference to the special power to receive further evidence. 24 Allesch v Mounz (2000) 203 CLR 172 at 180. 25 Federated Carters and Drivers Industrial Union of Australia v Motor Transport and Chauffeurs Association of Australia (1912) 6 CAR 122 at 123; Re Coldham; ex parte Brideson (1990) 170 CLR 267 at 274-5; Aldrich v Ross [2001] 2 QdR 235 at 255, where Thomas J at page 257 referred to the distinction between such an appeal and an appeal of the kind in Bailey v Costan. 26 Warren v Coombes (1979) 142 CLR 513 at 551; State Rail Authority (NSW) v Earthline Constructions Pty Ltd (1999) 73 ALJR 306 at 327. 27 M v R (1994) 181 CLR 487 at 493. 28 R v Free (supra) at 192. This was not an appeal by way of rehearing, but a fortiori. -- 13 of 14 -- 14 my opinion, in the light of the authorities to which I have just referred, the position is not analogous to a situation where on appeal by way of rehearing the appellate court has to make up its own mind on a matter of inference from primary facts which were either not in dispute or found by the court at first instance. In that case, the appellate court makes up its own mind with relatively little influence from the decision subject to appeal. In my opinion it is necessary to modify that approach, having regard to the fact that under legislation the determination of matters of this nature is primarily entrusted to the magistrate. [47] Accordingly, in my opinion, notwithstanding this is an appeal by way of rehearing, I should interfere only if there was some error of law made by the magistrate, such that it is appropriate for me to consider the question afresh, or if I am persuaded that the decision of the magistrate was clearly wrong. In deciding whether I am so persuaded, it is appropriate to take into account the reasoning process of the magistrate, and any aspect of that which suggests that the magistrate has fallen or may have fallen into error, and also the extent to which it might appear that the conclusion of the magistrate as to the behaviour of an ordinary person parts from my own view on that subject. It must be right for a court hearing an appeal under section 222 to interfere if it is necessary to do so to prevent injustice, that is, if the court thinks that upon the whole of the evidence it was not open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty. This was the test in M v R (p494-5). It may be that on its true interpretation section 223 would justify a more ready interference with such a finding, but I am not aware of any authoritative interpretation of that section to that effect. [48] In this case the reasons of the magistrate do not reveal any clear error of law in the approach to the application of section 25. On the other hand, I am concerned that the reasons suggest that there has been a failure to appreciate the significance of the different considerations applicable in relation to the two different parts of the driving. In my opinion, the concentration on the presumed availability of ambulance transport to hospital meant that insufficient attention was paid to all of the circumstances relevant to the position of the appellant in relation to the first passage of driving, and, in relation to the second passage, insufficient attention was given to the fact that the appellant was already driving at that point anyway. In these circumstances, I am affirmatively persuaded that the magistrate fell into error. I am persuaded that in the circumstances and in the light of the considerations referred to, it was not open to the magistrate to be satisfied beyond reasonable doubt that a defence under section 25 was not available in respect of either part of the driving in the particular circumstances of this case. In applying the approach in M v R, in my opinion it is appropriate to set aside the conviction. The charge ought to have been dismissed. [49] The appeal is allowed, the conviction is quashed and a verdict of acquittal is entered. I will hear submissions in relation to the costs of the prosecution, and of the appeal. -- 14 of 14 --