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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Mizikovsky v Commissioner of Police  QCA 22
COMMISSIONER OF POLICE
CA No 120 of 2020
DC No 3224 of 2019
Court of Appeal
Application for Leave s 118 DCA (Criminal)
District Court at Brisbane –  QDC 79 (Rosengren DCJ)
18 February 2021
18 February 2021
Holmes CJ and Fraser JA and Boddice J
Application for leave to appeal refused.
CRIMINAL LAW – EVIDENCE – MATTERS RELATING TO PROOF – BURDEN OF PROOF – where the applicant was convicted of an offence of failing to drive to the left of the dividing line, in contravention of s 132(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (the Regulation) – where s 132(2) provides that a driver must drive to the left of the dividing line except as permitted under ss 134, 139(2) or 139A(2) – where s 139(2) permits a driver to drive to the right of the dividing line in order to avoid an “obstruction”, in certain conditions – where the applicant contended that a bend in the road constituted an “obstruction” as defined in the Regulation – where the applicant appealed his conviction to the District Court pursuant to s 222 of the Justices Act 1886 – where that appeal was dismissed – where the applicant now seeks leave to appeal the District Court judge’s decision, pursuant to s 118(3) of the District Court of Queensland Act 1967 – where the applicant appeals on the ground that the judge reversed the burden of proof on the prosecution to negative the existence of the exception in s 139(2) of the Regulation – whether the onus of proof in respect of exceptions under s 132(2) lies on the prosecution or on the defence – whether a bend in the road can constitute an “obstruction”
District Court of Queensland Act 1967 (Qld), s 118(3)
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 132(2), s 139(2)
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249;  HCA 41, cited
McDonald v Queensland Police Service  2 Qd R 612;  QCA 255, cited
Vines v Djordjevitch (1955) 91 CLR 512;  HCA 19, applied
S Holt QC, with A Hughes, for the applicant
J Geary for the respondent
Anderson Legal for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- HOLMES CJ: The applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 to appeal against a District Court judge’s dismissal of his appeal under s 222 of the Justices Act 1886. He had appealed against his conviction by a magistrate of an offence of failing to drive to the left of the dividing line. While riding his motorcycle down Mount Nebo Road, he had crossed the white line on a stretch of road, approaching a relatively sharp left-hand bend. He was fined $219. The applicant had previously been convicted of the offence by a different magistrate, but successfully appealed that decision to a District Court judge who remitted the matter for rehearing, resulting in the conviction which is the subject of this appeal.
- In McDonald v Queensland Police Service  2 Qd R 612, this Court made it clear that leave sought under s 118 was not to be given lightly, given that an applicant had already had the benefit of two judicial hearings (or in this case, four), and observed:
“… the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected…” (at 625)
- The applicant was charged under s 132(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, which I will refer to as “the Regulation”, which provides:
“A driver on a road with a dividing line (except 2 continuous dividing lines) must drive to the left of the dividing line except as permitted under s 134, 139(2) or 139A(2)”.
- Section 139(2) contains the exception relevant to the argument here:
“A driver on a road with a dividing line may drive to the right of the dividing line to avoid an obstruction if–
- (a)the driver has a clear view of any approaching traffic; and
- (b)it is necessary and reasonable, in all the circumstances, for the driver to drive to the right of the dividing line to avoid the obstruction; and
- (c)the driver can do so safely”.
- The term “obstruction” is defined in the dictionary to the Regulation contained in schedule 5. It:
“includes a traffic hazard, but does not include a vehicle only because the vehicle is stopped in traffic or is travelling more slowly than other vehicles”.
- The applicant contends that the sharp left-hand bend ahead of him as he crossed the line constituted an obstruction in that it was a traffic hazard.
- The applicant’s draft notice of appeal contains two grounds: the first, that the District Court judge reversed what he says is an onus of proof on the prosecution to negative the existence of the s 139(2) exception, and the second, that her Honour failed to have regard to evidence central to that exception.
- As to the first, the District Court judge noted that the applicant had not mentioned any hazard or obstruction to the officer who charged him, and that there was no evidence that he had a clear view of the approaching traffic or that it was safe to cross the dividing line. Those statements, the applicant argued, amounted to an impermissible reversal of the onus of proof.
- I do not consider that there is a reasonable argument made in respect of this ground. It depends on what is, in my view, an incorrect construction of s 132(2) as imposing on the prosecution the onus of disproving the exceptions it contains.
- Section 132(2) is a provision of the type which
“…expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, making it evident that the enactment supplies considerations of substance for placing the burden of proof on the parties seeking to rely upon the additional or special matter…”: Vines v Djordjevitch (1955) 91 CLR 512 at 519.
- The liability in this case arises from the failure to keep left of the dividing line, but the additional facts specified in the exceptions may negate that liability.
- By way of further substantial considerations manifesting a legislative intention that the defendant bear the onus of proof, the s 139(2) exception turns (as do the other exceptions referred to in s 132(2)) on the driver’s crossing the line for a particular purpose. For s 139(2), that purpose is avoidance of an obstruction, which is permissible in the circumstances prescribed. The conditions in section 139(2)(a), (b) and (c), or their absence, may be objectively demonstrable (although it would seem that the defendant driver would be in a rather better position than the prosecution to give evidence about them). But, whether or not they or their absence be demonstrated, the question will remain as to whether the driver took the step of crossing the line in order to avoid the obstruction or for some other reason; such as inadvertence or a general preference for taking bends wide. That is a matter purely within the knowledge of the defendant. It is most unlikely that the legislature intended to place an onus on the prosecution to prove the purpose behind the defendant’s action: see Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 259.
- For those reasons, I conclude that the provision places the burden of proving the existence of an exception on the defendant, rather than there being an onus on the prosecution to prove its non-existence.
- As to the second ground, the applicant accepted that, were the first ground unsuccessful, the matters raised by the second ground would not warrant leave to appeal, so it is not necessary to consider it, with this exception. The ground was that there was evidence in the prosecution case which he said the District Court judge had disregarded, he not having himself given or called evidence before the Magistrate. As to that, the argument in any event seemed to me doomed to failure. The District Court judge’s expressed doubt that the circumstances confronting the applicant constituted a traffic hazard was, in my view, well-founded. The “obstruction” which s 139(2) contemplates is, I consider, an obstacle or defect in or on the roadway which the driver will be forced to pass through if he is unable to avoid it. A bend, on the other hand, is part of the ordinary configuration of the road, not capable of being avoided. Whichever side of the dividing line the driver travels on while rounding a bend, he will always have to navigate it, although the navigation process may be made easier by taking it more widely.
- The substantial injustice relied on in this case was the fact that the error was said to have been constituted by a reversal of the onus of proof. I do not need to consider whether an error of that kind which resulted purely in the not setting aside of a traffic conviction and fine would constitute a substantial injustice warranting leave to appeal because, as I have concluded, there was no such error. For those reasons, I would refuse leave to appeal.
- FRASER JA: I agree.
- BODDICE J: I agree.
- Published Case Name:
Mizikovsky v Commissioner of Police
- Shortened Case Name:
Mizikovsky v Commissioner of Police
 QCA 22
Holmes CJ, Fraser JA, Boddice J
18 Feb 2021
- White Star Case: