Woolston v Commissioner of Police
[2023] QCA 152
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Woolston v Commissioner of Police[2023] QCA 152
- Add to List
Woolston v Commissioner of Police[2023] QCA 152
Woolston v Commissioner of Police[2023] QCA 152
SUPREME COURT OF QUEENSLAND
CITATION: | Woolston v Commissioner of Police [2023] QCA 152 |
PARTIES: | WOOLSTON, Loretta Dale (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 73 of 2022 DC No 2288 of 2021 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2022] QDC 70 (Loury KC DCJ) |
DELIVERED ON: | 28 July 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 July 2023 |
JUDGES: | Bond and Flanagan and Boddice JJA |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was convicted in the Magistrates Court of one charge of failing to provide a specimen of breath as required (roadside) in a manner directed by police and one charge of failing to provide a specimen of breath for analysis – where the applicant was fined, convictions were recorded and her licence was disqualified for six months from the date of conviction – where, as a consequence of the convictions, the applicant was subject to an interlock period where she could only drive a nominated vehicle fitted with a prescribed interlock – where the applicant unsuccessfully appealed to the District Court – where the applicant seeks leave to appeal the dismissal of that appeal – where the applicant submits there has been a miscarriage of justice occasioned by the matter being listed for trial in the Magistrates Court; that she had been discriminated against; and that the sentence imposed was manifestly excessive – where the applicant further submits that had the trial not been the subject of delay and proceeded on the original listing date, she would not have been subject to a lengthier interlock period by virtue of the Transport Legislation (Road Safety and Other Matters) Amendment Act 2019 (Qld) – whether it was open for the applicant to be subject to the lengthier interlock period, notwithstanding that the offending preceded the introduction of the amending legislation – whether the primary judge’s conclusions were glaringly improbable or unreasonable – whether leave ought to be granted to correct a substantial injustice Traffic Operations (Road Use Management) Act 1995 (Qld), s 80, s 91J, s 91K, s 91M Commissioner of Police v Antoniolli [2021] QCA 237, applied R v Spina [2012] QCA 179, cited Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22, cited |
COUNSEL: | The applicant appeared on her own behalf Z A Kaplan for the respondent |
SOLICITORS: | The applicant appeared on her own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]BOND JA: I agree with the reasons for judgment of Boddice JA and with the orders proposed by his Honour.
- [2]FLANAGAN JA: I agree with Boddice JA.
- [3]BODDICE JA: On 15 July 2021, after a trial in the Magistrates Court, the applicant was found guilty of one offence of failing to provide a specimen of breath as required (roadside) in a manner directed by police pursuant to s 80(5A) of the Transport Operations (Road Use Management) Act 1995 (Qld) (the Act), and one offence of failing to provide a specimen of breath for analysis pursuant to s 80(11) of the Act.
- [4]On the same date, the applicant was fined $200 and $1,050 for the respective offences, convictions were recorded and her licence was disqualified for a period of six months from the date of conviction. As a consequence of the convictions, pursuant to s 91J of the Act, the applicant was subject to an interlock period where she could only drive a nominated vehicle fitted with a prescribed interlock.
- [5]On 1 April 2022, the applicant’s appeal to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) against conviction and sentence was dismissed.
- [6]The applicant now seeks leave to appeal the dismissal of that appeal, pursuant to s 118 of the District Court of Queensland Act 1967 (Qld).
- [7]As identified by the primary judge, the applicant’s Notice of Appeal to the District Court recorded that the appeal was against the conviction for the offence under s 80(11) of the Act, although the applicant’s filed material in that Court appeared to indicate that she intended to appeal against both convictions.
- [8]The primary judge considered that she did not have power to make any orders in relation to the applicant’s conviction for the offence under s 80(5A) of the Act. Accordingly, with respect to the applicant’s conviction, this Court’s jurisdiction is equally limited to the offence under s 80(11) of the Act.
- [9]In order to obtain leave to appeal, it is incumbent upon the applicant to persuade this Court that there is a reasonable argument that there is an error to be corrected which, if corrected, would justify the claim for relief; and that the grant of leave is necessary to correct a substantial injustice, or the proposed appeal raises an important point of law or principle, or a question of general or public importance.[1]
- [10]The applicant submits that leave to appeal ought to be granted due to:-
- (a)Plain error – evidence and legislation;
- (b)Evidentiary issues;
- (c)New evidence;
- (d)Ineffective assistance of counsel;
- (e)Untested legislation;
- (f)Public confidence; and
- (g)International convention obligations.
- (a)
- [11]In support of the application for leave, the applicant seeks leave to adduce further evidence namely, to call witnesses including an unidentified male who the applicant contends was sick and had used the evidentiary breathalyser prior to the applicant being directed to use it at the police station.
Charges
- [12]The applicant’s convictions arose in the following circumstances.
- [13]On the evening of 7 July 2020, two police officers driving an unmarked police vehicle stopped the applicant’s vehicle. After a short conversation, which was captured on the police officer’s body camera, the applicant was given multiple directions to provide a specimen of breath. Despite various attempts to administer the roadside breath test, the applicant did not provide the requisite specimen.
- [14]As a consequence, the applicant was transported to a police station where she was given a direction to provide a specimen of breath. A certificate, tendered pursuant to s 80(15B) of the Act, stated that at 11.35 pm the applicant was required to provide a specimen of breath for analysis by a breath analysing instrument, which was in proper working order and the applicant failed to provide such specimen of breath.
Magistrates Court trial
- [15]At the trial in the Magistrates Court, the police officers gave evidence as to the giving of the direction to provide breath sample by the roadside and the direction to provide a sample at the police station. The certificate was tendered into evidence as was body camera footage of their interaction with the applicant at the roadside and at the police station.
- [16]The applicant gave evidence. Relevantly, the applicant said that police entrapped her and that she had, on repeated occasions, tried to provide a sample of breath on the roadside, but was unable to do so because of a medical condition. The applicant did not produce a medical certificate to those police officers, but sought to rely on an affidavit at trial which exhibited a medical certificate.
- [17]The applicant further said that upon her attendance at the police station, she passed a young, sick man who was waiting to use the breath analysing machine; that she was not offered any personal protective equipment; that she was expected to use the same breathalyser machine; and that she declined to do so in accordance with her rights under the Human Rights Act 2019 (Qld). The applicant also gave evidence that she was compliant with the directions given by police as she offered to give a blood test at the police station.
- [18]The magistrate did not accept the applicant’s evidence, finding her to be a dishonest witness. The magistrate accepted the officer’s account and found each charge proven beyond reasonable doubt.
District Court appeal
- [19]At the hearing of her appeal in the District Court, the applicant contended the verdict of guilty was unsafe; the magistrate erred in ruling inadmissible the affidavit which exhibited her medical certificate; the conduct of police and the relevant legislation offended the Human Rights Act; and the magistrate erred in stating that the applicant raised the transmission of COVID-19 for the first time during her evidence at the trial.
- [20]The primary judge recorded that the court’s obligation was to conduct a real review of the evidence led before the magistrate and the magistrate’s reasons, together with any new evidence. The primary judge undertook that task, providing detailed reasons for concluding there was no substance in each of the stated grounds of appeal.
- [21]In doing so, the primary judge had regard to new evidence, being the affidavit that the magistrate had refused to accept, exhibiting a medical certificate dated 24 August 2020; a form headed “Medical Certificate for Motor Vehicle drivers” signed by the applicant’s treating doctor on 1 September 2020; an affidavit by the applicant’s son; an affidavit from Tanya Hunt; and a number of other documents.
- [22]Notwithstanding that additional evidence, the primary judge concluded that on the evidence before the magistrate and having regard to the new evidence, the applicant was guilty of the offence pursuant to s 80(11) of the Act.
Applicant’s submissions
- [23]The applicant seeks to advance a number of grounds of appeal. Many do no more than ventilate the matters raised before the primary judge. Relevantly, the applicant submits there has been a miscarriage of justice in the delay occasioned by the matter being listed for trial in the Magistrates Court; that she had been discriminated against; and that the sentence imposed was manifestly excessive.
- [24]With respect to the latter ground, that submission relates to the legislative requirement that the applicant be subject to an interlock condition, as amended on 10 September 2021 by virtue of the Transport Legislation (Road Safety and Other Matters) Amendment Act 2019 (Qld). That condition was a mandatory consequence of her convictions.
- [25]Further, as a consequence of the applicant’s inability to purchase a car, pursuant to s 91K of the Act, the applicant will be subject to an interlock period of five years.[2] The applicant advances two submissions in this respect. First, had the trial not been the subject of delay and proceeded on the original listing date, the applicant submits she would have been subject to an interlock period of 12 months.[3] Second, it is submitted the requirement for an interlock device is a form of further punishment akin to the rule of ‘double jeopardy’.
Consideration
- [26]Nothing in the applicant’s submissions to this Court support a conclusion that the primary judge’s conclusions were contrary to the evidence, or unreasonable in the sense that the overwhelming preponderance of evidence was against such conclusions, rendering the conclusions unreasonable and almost perverse.[4]
- [27]To the contrary, the primary judge’s finding that the medical certificate exhibited to the applicant’s affidavit did not provide evidence that the applicant was incapable of providing a specimen of breath on 7 July 2020 was consistent with the contents of that certificate, as were the factual findings of the primary judge that a lawful requisition was given by police to the applicant to provide a breath sample; that the applicant failed to do so and did so deliberately; that nothing in the applicant’s presentation demonstrated an incapacity to provide a sample of breath due to health concerns; that the circumstances did not mandate the police requiring a specimen of the applicant’s blood;[5] that at no stage during her engagement with police at the police station did the applicant make mention of any concerns regarding the transmission of COVID-19 by either another person in the station or via any equipment; and that the applicant was simply obstinate in her refusal to provide the specimen.
- [28]Further, a suggestion that evidence from an unidentified male, who was seated outside the breathalyser area upon the applicant’s arrival at the police station, would materially alter that conclusion, is without merit. First, the person is unknown. Second, the primary judge observed that the body camera footage recorded that the applicant did not speak to the man in the mask. It also recorded that the applicant did not express any concerns to police as she passed by him about the possible transmission of COVID-19, nor did she raise any concerns with the operator of the breathalyser machine in respect of possible transmission or cleaning procedures.
- [29]As those factual findings were consistent with the contemporaneous recordings, and are neither glaringly improbable nor unreasonable,[6] there is no basis upon which this Court could interfere with those findings. Leave to adduce further evidence, of the kind sought by the applicant, would not alter that conclusion.[7]
- [30]Further, nothing in the applicant’s submissions with respect to the interlock condition indicate error in the primary judge’s reasons. The primary judge correctly summarised the operation of the amended provisions at [70] – [79] of her Honour’s reasons. As observed, the provisions are now mandatory and apply to the applicant. It was, therefore, open as a matter of law for the applicant to be liable to such a condition, notwithstanding that the offending preceded the introduction of the amending legislation.
Conclusions
- [31]The applicant has not established that there is a reasonable argument there is an error to be corrected and has not established that leave is necessary to correct a substantial injustice, or that the proposed appeal raises an important point of law or principle, or a question of general or public importance.
Orders
- [32]I would order:
- Application for leave to adduce further evidence filed 17 January 2023 be refused.
- Application for leave to adduce further evidence filed 22 April 2023 be refused.
- Leave to appeal be refused.
Footnotes
[1]Commissioner of Police v Antoniolli [2021] QCA 237 at [115] (Commissioner of Police v Antoniolli).
[2]Traffic Operations (Road Use Management) Act 1995 (Qld) s 91M.
[3]See s 91N of the Traffic Operations (Road Use Management) Act 1995 (Qld), current as at 22 July 2021.
[4]Commissioner of Police v Antoniolli at [117]–[118], citing Hocking v Bell (1945) 71 CLR 430 at 499, per Dixon J.
[5]Traffic Operations (Road Use Management) Act 1995 (Qld) s 80(8E).
[6]Robinson Helicopter Co Inc v McDermott [2016] HCA 22 at [43], per French CJ, Bell, Keane, Nettle and Gordon JJ.
[7]R v Spina [2012] QCA 179 at [33], per McMurdo P.