Bevis v Priebe; ex parte Bevis [1997] QCA 345 [1998] 2 Qd R 1

1 [1997] QCA 345 COURT OF APPEAL DAVIES JA SHEPHERDSON J WHITE J Appeal No 2481 of 1997 PHILIP JOHN BEVIS Appellant (Applicant) and KALVEN EARL PRIEBE Respondent (Defendant) BRISBANE ..DATE 18/08/97 JUDGMENT -- 1 of 6 -- 2 JUDGMENT DAVIES JA: This is an order to review a decision of the Magistrates Court on 31 January 1997 dismissing a charge against Kalven Earl Priebe of disobeying a red traffic control light signal. The facts of the case are not in dispute. Mr Priebe is a Sergeant of Police. On the day in question he was driving to the Fortitude Valley Police Station to collect a drug kit to test a driver suspected of drink driving following an accident who was then at Royal Brisbane Hospital. It was during the course of his journey from the accident scene to the police station that he drove through a red light at an intersection of Ann and James Streets, Fortitude Valley. The question below and in this Court is whether in those circumstances Sergeant Priebe was, when he drove through the red light, exercising a power or performing a function under the Traffic Act or another Act within the meaning of section 68 of the Traffic Act. If he was then section 19A of the Traffic Act under which he was charged did not apply to him. The learned Stipendiary Magistrate held that it did not so apply. The respondent submitted and the learned Magistrate held that, at the relevant time, the respondent was performing a function under the Police Service Administration Act 1990, namely the detection of an offender or the bringing of an offender to justice within the meaning of section 2.3(d). On the other hand the appellant contends that the respondent was involved in the administration subject to the directions -- 2 of 6 -- 3 JUDGMENT of the commission of the provisions of the Traffic Act within the meaning of section 2.3(f)(ii) of the Police Service Administration Act and that relevant directions in the circumstances of this case prohibited his travelling through a red light. In order to analyse those competing intentions it is necessary to look at the respective provisions of section 2.3 relied on for those contentions in the context of that section. Section 2.3 relevantly provides: "2.3 The functions of the Police Service are - (a) the preservation of peace and good order - (i) in all areas of the state; and (ii) in all areas outside the state where the laws of the state may lawfully be applied, when occasion demands; (b) the protection of all communities in the state and all members thereof - (i) from unlawful disruption of peace and good order that results, or is likely to result, from - (A) actions of criminal offenders; (B) actions or omissions of other persons; (ii) from commission of offences against the law generally; (c) the prevention of crime; (d) the detection of offenders and bringing of offenders to justice; (e) the upholding of the law generally; (f) the administration, in a responsible, fair and efficient manner and subject to due process of law and directions of the commissioner, of (i) the provisions of the Criminal Code; (ii) the provisions of all other acts or laws for the time being committed to the responsibility of the Service; (ii) the powers, duties and discretions prescribed for officers by any Act; (g) the provision of such services, and the rendering of such assistance, in situations of emergency or otherwise, as are required of officers by lawful -- 3 of 6 -- 4 JUDGMENT authority or the reasonable expectations of the community or as are reasonably sought of officers by members of the community." It can be seen that this section describes the functions of the police service as it must necessarily do in general terms. But the purpose of section 68 is plainly to enable a police officer to act in breach of the Traffic Act other than section 16 and 16A only when the doing of that Act which constitutes the breach is the exercise of the power or the performance of a function under the Traffic Act or under some other Act; where, for example, in order to prevent a crime (section 2.3(c)) or to catch an offender (section 2.3(d)) a police officer has to drive through a red light. In those examples the police officer is performing the function of actually preventing the crime or actually bringing the offender to justice respectively. Here it could not be said that the respondent was bringing in an offender for justice in the sense of actually apprehending him. In collecting a blood kit for testing an alleged offender he was merely performing an act incidental to bringing the offender to justice. To adopt such a broad construction of section 68 as would include such incidental acts would in my view have consequences unintended by the legislature. Should a mobile patrol in the course of patrolling city streets for the prevention of crime (section 2.3(e)) be permitted in the course of doing so to break all traffic regulations? Should a police car taking a shoplifter to the police station for the purpose of charging him (section 2.3(d)) be permitted to -- 4 of 6 -- 5 JUDGMENT go through all red lights on the way? Plainly that is not the intention of the legislature. The intention of the legislature, as I have set it out, is in my view consistent with some authorities referred to us by the respondent in these proceedings, particularly Hudson v. Venderheld (1968) 118 CLR 171 and Australian National Airlines Commission v. Newman (1987) 162 CLR 466. The respondent in this case was not, at the time he offended against section 19A of the Traffic Act, performing the actual function of the detection of an offender or the actual function of bringing an offender to justice within the meaning of section 2.3(d) of the Police Service Administration Act. He was merely performing a function incidental to that latter function. Accordingly, as no other basis was shown for the application of section 68, the order nisi should in my view be made absolute. A conviction should be entered against the respondent and the matter should be remitted to the Magistrates Court to fix the appropriate penalty. The appellant should have his costs to this appeal but the respondent should be granted a certificate pursuant to section 15(1) of the Appeal Costs Fund Act 1973. SHEPHERDSON J: I agree with the orders proposed by the learned presiding Judge and with his reasons. I would add that in this particular case given the way in which the case was conducted before the Stipendiary Magistrate that a conviction should be entered. The provisions of chapter 5 of the Criminal Code apply to all statutory offences in -- 5 of 6 -- 6 JUDGMENT Queensland and at the hearing below there was no suggestion of reliance on any part of chapter 5. WHITE J: I agree with the orders proposed by the learned presiding Judge and with the reasons which he has given. ----- -- 6 of 6 --