Brooks v Spasovski [2004] QDC 471

DISTRICT COURT OF QUEENSLAND CITATION: Brooks v Spasovski [2004] QDC 471 PARTIES: KELLIE LOUISE BROOKS Appellant v PERO SPASOVSKI Respondent FILE NO/S: Appeal No D42/2004 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Holland Park DELIVERED ON: 30 November 2004 DELIVERED AT: Brisbane HEARING DATE: 18 October 2004 JUDGE: McGill DCJ ORDER: Appeal allowed, decision of the magistrate set aside, and in lieu thereof the respondent is convicted of the offence. CATCHWORDS: VEHICLES AND TRAFFIC – Offences – Alcohol and drug related – “in charge of” vehicle – absence of intention to drive irrelevant. Transport Operations (Road Use Management) Act 1995 s 79(1)(c). Director of Public Prosecutions v Watkins [1989] QB 821 – considered. Gee v Williams, ex parte Williams (1946) 41 QJPR 145 – followed. Haines v Roberts [1953] 1 WLR 309 – considered. Kunze v Vowles; ex parte Vowles [1955] St R Qd 591 – followed. R v Heaton; ex parte Heaton [1952] QWN 36 – followed. Sheldrake v Director of Public Prosecutions [2004] 3 WLR 976 – applied. Wynne v Campbell; ex parte Campbell [1965] QWN 7 – distinguished. -- 1 of 10 -- 2 COUNSEL: M McCormack for the appellant The respondent did not appear and was not represented. SOLICITORS: Director of Public Prosecutions for the appellant The respondent was not represented. [1] The respondent was charged that on 1 July 2003 he was in charge of a motor vehicle whilst under the influence of liquor, contrary to s 79(1)(c) of the Transport Operations (Road Use Management) Act 1995 (“the Act”). Following a summary trial at Holland Park Magistrates Court, he was on 24 November 2003 found not guilty. The complainant has appealed against that decision, as she is entitled to do, under s 222 of the Justices Act. The respondent did not file an outline of argument, or appear on the hearing of the appeal. The facts [2] The magistrate in dismissing the charge made the following findings of fact: 1. On 1 July 2003 at or about 8.00am the defendant drove to the Manly Village Shopping Centre carpark. He went to the shopping centre and bought some alcohol which he consumed. 2. He later went to the Manly Hotel where, during the course of the day, he consumed a large amount of alcohol. 3. The defendant, during the day from about 1.00pm, called members of his family, including his father and his son, to come and pick him up. 4. He had consumed alcohol on other occasions, and members of his family had come to pick him up on other occasions, as he had requested them to do. 5. The defendant was asked to leave the Manly Hotel at or about 2.00pm by the games manager of the Manly Hotel. 6. The defendant left the hotel, went to the Manly Village Shopping Centre, bought some items which he carried in a plastic shopping bag and at or about 3.00pm went to his1 motor vehicle. 7. The defendant fumbled with his keys, opened the car door, sat in his seat – being the driver’s seat – closed the car door and threw his keys down towards the ground, probably intending that they go onto the floor, but the keys landed on his lap where they stayed. 8. The defendant was waiting in his motor vehicle to be, as he put it, rescued by a member of his family; he was waiting for a family member to come and transport him away. 1 The relevant vehicle was actually owned by the respondent’s son, but evidently the respondent had been allowed to drive it to the hotel. -- 2 of 10 -- 3 9. Soon after 3.30pm police officers approached the defendant in his vehicle where he was with his head down, asleep. One knocked on the window. 10. One police officer opened the defendant’s door and the other2 helped the defendant from the motor vehicle. 11. The keys to the motor vehicle fell from the defendant’s lap and onto the ground. 12. The defendant was showing indications of intoxication, including being unsteady on his feet, slurring his speech, and being difficult to understand, although it was noted the defendant speaks with a Yugoslav accent. 13. The defendant told police officers on more than one occasion that he was not driving. 14. The defendant was taken to the Wynnum Police Station where, at 4.25pm, he had a blood alcohol reading of .271 percent. [3] The evidence was that the respondent was alone in the car at the relevant time. There was evidence from a witness who saw the respondent come to his vehicle and get into it. He described the respondent as unsteady on his feet and having trouble getting the key into the lock of the vehicle. He saw him get into the driver’s seat, then slump forward for a few seconds leaning on the steering wheel, then slump back and, he thought, go to sleep. He said under cross-examination that the respondent did not attempt to start the vehicle. His evidence appears to have been accepted. Evidence of another witness that he had appeared to attempt to start the vehicle was rejected by the magistrate, as she was entitled to do. The law [4] The relevant section of the Act is s 79(1)(c) which provides: “Any person who, whilst under the influence of liquor or a drug, … is in charge of a motor vehicle, tram, train or vessel is guilty of an offence.” By s 79(11)(a) the vehicle may be on a road or elsewhere. It is also relevant to refer to s 124(1)(t) of the Act, which 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 the circumstances not known to such person it is impossible to drive or otherwise use the same.” [5] The appellant accepted that s 124(1)(t) of the Act is not a substantive provision but an evidentiary one, which raises a presumption of fact capable of rebuttal by evidence: Wynne v Campbell; ex parte Campbell [1966] QWN 7. The magistrate in the present case found on the basis of the evidence of the respondent that that presumption was rebutted. In the circumstances of this case, it seems to me that the 2 It was submitted for the appellant that this was an error, as the same officer opened the door of the vehicle; that is of no significance in the circumstances. -- 3 of 10 -- 4 crucial question is not the operation and meaning of s 124(1)(t), but what is meant by the concept of being “in charge of a motor vehicle” for the purposes of the Act. Reasons of the magistrate [6] The magistrate referred to various authorities, and found that the defendant had formed the intention not to drive the motor vehicle in which he was seated in the driver’s seat. She found that he was in a position to exercise control over the vehicle, but he had manifested his intention not to assume actual physical control. She found that he did not assume actual physical control, and therefore could not be said to be in charge of the motor vehicle. On that basis she found the respondent not guilty of the offence. Submissions for the appellant [7] The appellant submitted that this involved the application of the wrong test for being in charge of a vehicle. The appellant submitted that the respondent was in charge because he was sitting in the driver’s seat of the vehicle, the keys to the vehicle were in his lap, he had driven it to the carpark earlier that day, and he had not surrendered control of it to any other person. The appellant also relied on his admission during cross-examination that he was in possession of the vehicle and was looking after it at the time. It was submitted that the concept of being “in charge” did not include an element of intention to exercise physical control of the vehicle by driving it. Indeed, even if a person had manifested an intention to refrain from driving a vehicle that person may still be in charge of the vehicle. Development of the concept in England [8] Provisions of this nature appear to date from the English Licensing Act 1872, which by s 12 made it an offence “to be drunk while in charge on any highway or other public place of any carriage, horse, cattle or steam engine …” The section also made it an offence to be drunk in possession of a loaded firearm, or indeed to be drunk in any highway or public place. The section was directed against public drunkenness, and the additional element of being in charge of a carriage etc, or in possession of a loaded firearm, seems to have been essentially a circumstance of aggravation. It has been said that the offence was based on the obvious risk of mishap if the person was drunk in the situations specified.3 [9] Continuing the story in England, the Road Traffic Act 1930 in s 15(1) made it an offence to drive or to attempt to drive or to be in charge of a motor vehicle on a road or other public place when under the influence of drink to such an extent as to be incapable of having proper control of the vehicle. Similar provisions were inserted in successive legislation up to the 1988 Road Traffic Act. No exhaustive definition has been given of the scope of the phrase; it has been suggested that that may not be possible.4 It has been said that the question of whether someone is in charge of a vehicle is a question of fact, but that does not give any content to the concept. 3 Sheldrake v Director of Public Prosecutions [2004] 3 WLR 976 at 998, per Lord Bingham. 4 DPP v Watson [1989] QB 821 at 826. To do so might risk putting a gloss on the statute. -- 4 of 10 -- 5 [10] In Director of Public Prosecutions v Watkins [1989] QB 821 Taylor LJ at 829 said in relation to the 1972 Act: “In regard to that section two broad propositions are clear. First, the offence of being ‘in charge’ is the lowest in the scale of three charges relating to driving and drink. The two higher in the scale are driving and attempting to drive. Therefore a defendant can be ‘in charge’ although neither driving nor attempting to drive. Clearly however the mischief aimed at is to prevent driving when unfit through drink. The offence of being ‘in charge’ must therefore be intended to convict those who are not driving and have not yet done more than a preparatory act towards driving, but who in all the circumstances have already formed or may yet form the intention to drive the vehicle, and may try to drive it whilst still unfit.” [11] More recently however it has been authoritatively stated by the House of Lords that the ingredients of the offence make no reference to doing a preparatory act towards driving or forming an intention to drive.5 The offence does not require proof that a defendant is likely to drive.6 Lord Bingham there went on to say that this was not an oppressive outcome “since a person in charge of a car when unfit to drive it may properly be expected to divest himself of a power to do so (as by giving the keys to someone else) or put it out of his power to do so (as by going well away).” He added that the words “in charge” may have been too broadly interpreted and applied but that was not a question which had to be decided in that appeal. [12] Lord Steyn and Lord Phillips agreed with Lord Bingham. Lord Carswell, at p.1,015, also stated that proof of being in charge of a vehicle did not necessitate proof of a likelihood of the defendant’s driving the vehicle. On p.1,016 he said: “The ultimate risks may be that the defendant may elect to drive the vehicle, but it is not in my view the gravamen of the offence. Being in charge of a vehicle while over the limit is in itself such an anti-social act that parliament has long since made it an offence. A person who has drunk more than the limit should take steps to put it out of his power to drive. Section 5(2) gives his an escape route, which it is quite easy for him to take in a genuine case, as he is the person best placed to know and establish whether he was likely to drive the vehicle. Conversely, the prosecution might be able readily enough to establish that the defendant was in a position to drive the vehicle if he elected to do so, but it could well be difficult to prove beyond reasonable doubt that there was a likelihood of his driving it.” [13] His Lordship went on to give an example of an owner of a car who was washing it, and had the keys with him for that purpose, as someone who was indisputably in charge of the vehicle even if he had no intention to do anything other than clean it: p.1,016. Section 5(2) is a simplified and somewhat less draconian provision than that found in s 79(6) of the Act. The English provision put the onus on the defendant to prove, but only on the balance of probabilities, that “the circumstances were such that there was no likelihood of his driving the vehicle” while he was over the alcohol limit. 5 Sheldrake (supra) at p.999. This may be a little unfair to Taylor LJ, who may have been simply noting that a person would come to be in charge of a vehicle before actually attempting to drive it, and then driving it. Taking charge of a vehicle can be seen as an act preparatory towards driving, although one can be in charge of a vehicle without preparing to drive it. 6 Ibid p.1,000, approving DPP v Watson at 829 where it was said that a person could be in charge of a vehicle although there was no likelihood of driving. -- 5 of 10 -- 6 [14] Some of the earlier cases in England took an even wider view of what is required to be “in charge of” a motor vehicle. That appears to have originated with the approach of Lord Goddard CJ, that someone must be in charge of any car in a public place, unless it has been abandoned altogether, so that a person who was at one point in charge of it remains in charge of it unless and until he hands over charge of it to someone else.7 Hence his Lordship said in Haines v Roberts [1953] 1 WLR 309 at 311: “It may be that, if a man goes to a public house and leaves his car outside or in the carpark and, getting drunk, asks a friend to look after the car for him or to take it home, he has put it in charge of somebody else; but if he has not put it in charge of somebody else he is in charge until he does.” That is an extreme example, suggesting that people could only effectively avoid being in charge of a vehicle in such circumstances if they had handed over their keys to someone else, perhaps if the licensed premises had valet parking. Wilkinson in his text “Road Traffic Offences” in 1985 described Lord Goddard’s approach as one rendering car owners “vulnerable to prosecution in circumstances which might appear grotesque,” but concluded (p.189) that “English courts have tended to work from the presumption that someone must be ‘in charge’ of any motor vehicle which is parked on a road or public place and, prima facie, that person will be the person with the keys.”. [15] Hence in England a driver who had pulled off the road into a garage, got out of the car and walked away and was half a mile away was regarded as still being then in charge of it.8 A bus driver who left his bus on the road when he went off duty was still in charge of it unless and until he handed over the bus to someone else.9 Conversely someone who was heading towards his vehicle but was stopped by police when he was still three yards away from it was already in charge of it.10 It has also been held that a person can be in charge of a vehicle even though the vehicle is incapable of being driven.11 Wilkinson said that the Scottish courts have adopted a somewhat different approach, requiring a close connection between the defendant and the control of, or likelihood of driving, the motor vehicle. The position in Australia [16] In Australia this provision has always been to some extent controversial, with concern about its possible scope. In 1976 the Australian Capital Territory Bar made a submission to the Australia Law Reform Commission, which was investigating the matter, that the offence was unsatisfactory because a person should not be punished for anti-social actions he might perform, but only for what he in fact does.12 There was concern that persons who had nothing to do with driving might be regarded as being in charge of their cars at the relevant time. But the Law Reform Commission thought it appropriate to have such an offence to permit effective police action in cases where the vehicle was stationary. It was expected 7 R v Short (1955) The Times 10 December, cited in Wilkinson “Road Traffic Offences” (1985) p.189. 8 Woodage v Jones (No 2) (1975) RTR 119. 9 Ellis v Smith [1962] 1 WLR 1,486. 10 Leach v Evans [1952] 2 All ER 264. 11 R v Lawrence [1973] 1 WLR 329, because of accident damage; R v Moore [1975] RTR 285, when the vehicle was undrivable because the police had disabled it by removing the rotor. The decision in Kunze v Vowles; ex parte Vowles [1955] St R Qd 591 is to the same effect. 12 The Law Reform Commission, report number 4 (1976) “Alcohol, Drugs and Driving”, cited in Nicholson “Drink Driving : the Law in Queensland” (1998) pp.40-41. -- 6 of 10 -- 7 however that the power would be used only to apprehend persons who were actually likely to drive, and it was suggested that it should be a defence for the defendant to establish that he had not driven or attempted to do so and did not intend to drive the vehicle. The Commission considered that it was thoroughly undesirable that drivers be criminally liable for sleeping it off. [17] A narrower approach than the Goddard approach has been adopted on occasions elsewhere in Australia. For example in Smith v Westell [1948] Tas SR 97 Morris CJ said: “It is possible to limit the meaning of ‘have charge of’ so as to mean that in addition to his having the care, custody or responsibility for the vehicle in a public place, the relationship of the man to the vehicle must be such that he can, and more than that, there is a reasonable likelihood that he will, attempt to operate it and so become a danger.” That appears to be following the Scottish authorities rather than the English authorities, and appears to be inconsistent with the approach of the Full Court in Queensland. Queensland authorities [18] In Queensland the courts have adopted a wide scope for the provision, and the legislature a much more limited defence. The specific statutory defence (s 79(6)) contains a number of additional elements, one of which, an absence of prior conviction of a similar offence during a specified time, has no rational connection with the circumstances of the incident in question. In addition, not only is the onus on the defendant, but the standard of proof is beyond reasonable doubt. It is clear that in the present case the respondent could not establish the statutory defence, so it is unnecessary to consider it further. [19] Unfortunately the extreme view of Lord Goddard was adopted by the Full Court in Queensland in Kunze v Vowles; ex parte Vowles [1955] St R Qd 591. The passage quoted earlier from Haines v Roberts was cited13 in the judgment of the Chief Justice, with whom the other members of the court agreed, at p.599 in support of the proposition that the appellant was in charge of a motor vehicle at the relevant time because he had driven the motor vehicle to the place where it was “and the absence of any evidence that he had handed the vehicle over to the charge of any other person.” At the relevant time the vehicle, which had been damaged in a collision, was undrivable, and the appellant was about 60 yards away from it. [20] This very wide doctrine is now it seems to me of doubtful authority in England,14 and accordingly Kunze is in my opinion ripe for overriding in Queensland, but I am not aware of any later decision of the Full Court or Court of Appeal by which it has been overruled, and until that occurs I remain bound by it.15 13 Though inaccurately; it was named Raines v Roberts. 14 It seems to have been treated as too wide in Woodage v Jones [No 2] [1975] RTR 119 and DPP v Watkins [1989] QB 821 at p.830; at p.831 a more moderate formulation of the test was put forward, which is still quite wide. 15 I could not regard it as overruled by the comment in Behrendorff v Soblusky (1957) 98 CLR 619 at 624, that the words were “probably used to include cases where no one is occupying the driver’s seat, as, for example, if the person in charge happens momentarily not to be actually in the car.” [emphasis added] -- 7 of 10 -- 8 [21] The present circumstances would anyway fall within the current English exposition of the concept of being in charge of a vehicle. The respondent was at the vehicle (indeed seated in the driver’s seat) and was in possession of the keys to the vehicle, and was in a position to drive the vehicle if he chose to do so. No other person was in charge of it, and the fact that he had arranged for someone else to come to take charge of it does not mean that he was not still in charge until that happened. Accepting that an absence of intention to drive or attempt to drive is consistent with being in charge of a vehicle, a finding of the absence of that intention was not sufficient to prevent the respondent from being in charge of the vehicle. [22] There are decisions where a person has been held to be in charge of a vehicle where he was exercising possession and control over it, though not for the purpose of driving it. For example, in R v Heaton; ex parte Heaton [1952] QWN 36 the Full Court held that the appellant was in charge of a vehicle which he owned when he was at the vehicle intending to get into it in order to have a sleep, and to mind his dog and some other things which were in there, but having no immediate intention to put it in motion. Other cases to similar effect include Gee v Williams, ex parte Williams (1946) 41 QJPR 145; 16 Morton v Confer [1963] 1 WLR 763; DPP v Watkins [1989] QB 821; Davies v Waldron [1989] VR 449; and Peters v McConvill (appeal 108/91, Boulton ADCJ, 11.2.92, unreported). A person in the driver’s seat and in possession of the keys has generally been held to be in charge of the vehicle.17 “Passenger” cases [23] Being in charge is essentially a matter of physical control.18 But the fact that a person is in a vehicle does not necessarily mean that he is in charge of it, as illustrated by Wynne v Campbell; ex parte Campbell [1965] QWN 7. In that case the appellant was riding as a passenger in a vehicle driven by someone else and owned by another person again. The driver had stopped the vehicle and after an unsuccessful attempt to restart it, went in search of the owner, during which time police found the appellant asleep in the middle of the front seat slumped against the steering wheel. The keys were still in the ignition. It was held by the Full Court that the appellant was not in charge of the vehicle at the relevant time, presumably on the basis that the man who had been driving remained in charge although he had left the scene, as he had not put the appellant in charge of the vehicle. That is consistent with the Goddard approach, that a person can be in charge of a vehicle although absent from it, and remains in charge until charge is handed over to someone else. [24] There are a number of other “passenger” cases to the same effect.19 In Cornelius v Jones (1935) 38 WALR 62 the appellant was the owner of the vehicle and riding as a passenger in it but was held not to be in charge of it, in circumstances where someone else had been driving it and the appellant had not resumed charge of it. A 16 In this case the Full Court held that a person who had parked his car and was sitting in the driving seat could be still in charge of it although asleep: p.147. 17 One exception is Blayney v Knight [1975] RTR 279, said in DPP v Watkins (supra) to have involved very special facts, including that there was someone else who was in charge of the vehicle. 18 Ringelstein v Redford Cattle Co Pty Ltd [1995] 1Qd R 433 at 436. 19 The only “passenger” regarded as being in charge of a vehicle is a driving instructor, riding in a vehicle driven by a learner: Ricketts v Laws (1988) 14 NSWLR 311 at 319. -- 8 of 10 -- 9 similar approach was adopted by the Queensland Full Court in Pryor v Morgan; ex parte Pryor [1970] QWN 13. In Elloy v Noble (Townsville appeal 15/87, Wylie DCJ, 9.6.87, unreported) the owner of a vehicle was being driven as a passenger in it when it was involved in an accident. The person who had been driving fled, but the owner who was thrown out of the vehicle in the accident remained at the scene, and was held not to be in charge of the vehicle because the man who had been driving was in charge of it, and the owner had not subsequently resumed charge of it. In that case the keys were left in the ignition when the driver fled. These decisions show that a person who has been a passenger in a vehicle, even if the owner of it, will not be “in charge” of it, even if the driver has left the scene, and even if the keys are in the vehicle, unless the driver has placed the passenger in charge of the vehicle (which the passenger has accepted) or the passenger has done something to take charge of the vehicle. They are distinguishable from the present case. [25] I was referred to a number of other District Court decisions, about which I need not say very much. It seems to me, with respect, that the decision in White v Wood (appeal 52/90, 18.7.90, Boyce DCJ, unreported) paid too much regard to the question of whether there was any reasonable likelihood that the defendant would attempt to operate the vehicle, and insufficient attention to the question of whether he had effectively divested himself of charge of the vehicle. I have difficulty reconciling it with the decision in Kunze, which was not referred to. Peters v McConvill (appeal 118/91, Boulton ADCJ, 11.2.92, unreported) was a case where the appellant was found in the driver’s seat of a car owned by him with the keys in the ignition and was held to be in charge of it. Atkinson v Fox (appeal 69/92, Kimmins DCJ, 22.9.92, unreported) was a case where the owner of the vehicle was in the driver’s seat, but without the keys which had been left in adjacent licensed premises, where an employee had taken possession of them. They were apparently not left there by the owner deliberately, so this was not a case where the owner had passed charge of the vehicle to someone at the hotel. On that basis the decision may be supported, and though there was no analysis of principle and some of the matters listed as supporting a finding that the owner was in charge of the vehicle do not seem to me to support that finding. Sparkes v Allan (appeal 4266/01, Forno DCJ, 20.2.02, unreported) was a case about the defence in s 79(6). Conclusion [26] In the present case, the respondent had been in charge of the vehicle, and had not returned charge of it to the owner, or handed it over to any other person. He was physically present at the vehicle, with the keys, and occupying the driver’s seat, so that he was apparently exercising physical control over the vehicle. That he had no intention of driving it is in my opinion on the authorities irrelevant. What matters is that he was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person. On the facts found by the magistrate, the respondent was at the relevant time in charge of this vehicle. [27] I have some sympathy with the view of the learned magistrate, which is consistent with the approach adopted by the Australian Law Reform Commission in 1976. The approach adopted by the Full Court in Kunze gives a very wide scope of operation to this provision, which is not adequately mitigated by the limited defence -- 9 of 10 -- 10 in s 79(6). The legislature has imposed penalties, including in some cases automatic penalties, which are the same as those for driving a vehicle, notwithstanding that it has been recognised that this is a less serious offence.20 In my opinion sleeping it off in a car involves a good deal less criminality than actually driving the vehicle in a public street in an intoxicated state. Yet the penalty regime which has been imposed does not take account of this distinction. That is regrettable. [28] In the circumstances the appeal must be allowed, the decision of the magistrate set aside, and in lieu thereof there be a verdict that the respondent be convicted of the offence. I shall fix a convenient date to hear a plea in mitigation on behalf of the respondent, and pass sentence. 20 DPP v Watkins (supra) at p. 829. -- 10 of 10 --