DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the decision of the learned Magistrate at Brisbane who, on 23 February 2005, found the appellant guilty of the offence:-

“That on the 19^th of September 2004 at Brisbane in the State of Queensland whilst he was under the influence of liquor or a drug was in charge of a motor vehicle, namely a motor car on a road, namely Oateson Skyline Drive, Brisbane.”

2. [2]
   The grounds of appeal are:-

“The conviction in unsafe and satisfactory, the wrong test was applied on the conviction, I was self-represented and was given no assistance from the Magistrate, I was told I should have put things to witnesses that I did not know about and it should have been reasonable for the Magistrate to ask it to clarify a point, any other matters arising.”

3. [3]
   In the appellant’s outline of submissions, after setting out what he says are the circumstances of the offence, he states under the heading of “other matters” the following:-

“(a) that if another person has driven the car as stated on oath and still has the key to the car then it is deemed that person is the person in charge.

2. (b)
   that in today’s car the keys have an overbearing on the ability to operate the car with possession of the keys a evidently point this was not established at the hearing by the facts, the only keys that were said to be produced one officer identified as a set of xf Falcon keys with the other not knowing, neither had tried them in the car.

3. (c)
   that when the property book from Brisbane cells was asked for it could not be found as it would have had an entry for a set of keys if there were any keys.

4. (d)
   that when I arrived home that night I had to awaken my house mate as I had no house key as they were on my car keys;

5. (e)
   the Crown failed to prove I was the driver of the car that night to the location where it was and thus could not be beyond reasonable doubt prove that I was the person in charge;

6. (f)
   that in all of the other cases of this type the defendant has admitted driving their vehicle to a location where they were found, this case is the opposite as there was evidence that someone else drove it there and the Crown offered no proof as to the charge of the vehicle being passed on to me.”

4. [4]
   Finally, the appellant states in his outline of submissions:-

1. (a)
   that the decision is unsafe and unsatisfactory having regard to the evidence;

2. (b)
   that not all elements of the offence have been proved beyond reasonable doubt;

3. (c)
   the charge of `in charge’ gives no scope as to its definition;

5. [5]
   Two police officers gave evidence for the prosecution. The appellant gave evidence himself and led evidence from three other witnesses.

6. [6]
   The learned Magistrate made the following findings:-

1. At approximately 8.35 p.m. on Sunday, 19 September 2004, the defendant was sitting in the driver’s seat of a white Ford station wagon, registration number 074-HDG;
2. The Ford station wagon is a motor vehicle, as defined in the Act;
3. The motor vehicle was parked on the median strip at the relevant time;
4. Being “on” the median strip of that road is the same as being “on” that road;
5. The owner of the motor vehicle in question at the relevant time was the defendant;
6. The defendant produced a set of keys from his pocket when he was asked by Sergeant Honan if he owned the motor vehicle and he replied, “Yeah”;
7. There is no direct evidence that the keys produced by the defendant to the police officers were the keys to his car;
8. The defendant had no keys on his person when processed later that night at the city watch-house;
9. And this is very important.  The purpose of that short trip in the defendant’s vehicle from his residence in Ferguson Street, Norman Park, to the area depicted by the police car in Exhibit 3, a distance of approximately 100 metres on the night in question.  The purpose was to swap or transfer the better tyres on the abandoned utility on to his motor vehicle;
10. The defence evidence is, and I assume will find in favour of the defendant, that his neighbour, Jeffrey Hoare, drove the defendant’s vehicle to the site of the utility on the night in question and that the defendant and the witnesses, McCardle and Fussell, were also in the vehicle when it was driven up there by the witness, Hoare;
11. Upon arriving at the location of the utility, Hoare wanted  nothing more to do with what the defendant and the others intended to do, namely swap over the tyres, and he, as it were, washed his hands of any further involvement by returning home immediately;
12. Upon departure of the vehicle’s driver, the defendant must have moved and did in fact move into the driver’s seat of his vehicle and appeared to be the person in control of that stationary vehicle;
13. Given that Mr Hoare wanted no further involvement of the matter, it is beyond belief that he would have then gone home armed with the defendant’s car keys.  I reject that part of the defence evidence totally.  I have no doubt that it is a recent invention;
14. To the extent that the driver, Hoare, may have been in charge of the defendant’s vehicle whilst he drove it up to the abandoned utility, by then departing the scene, because he wanted no further involvement in what was about to happen, Hoare surrendered his charge, and I so find;
15. By his very presence in his own vehicle in that place and for a particular purpose, there is no need to repeat what that purpose was, and especially after the driver had decamped because he wanted no further involvement, the defendant not only had the right of control, but also de facto, if not actual control of his vehicle, for the purpose of it being where it was at that time, namely the swapping of the tyres.

Clearly, the defendant was in possession of his motor vehicle at the relevant time.  There is no doubt about that;

16. When the police vehicle pulled up behind the defendant’s vehicle and the utility, the police officers did not then know why the vehicles were there or what was going on.  However, the defendant appeared to be the person in control of the parked station wagon, simply because he was seen to be seated in the driver’s seat.  That is why after the defendant exited the vehicle, he was asked by Sergeant Honan if he was the owner of the vehicle;

17. As a question of fact, I find beyond reasonable doubt that at the relevant time and place, the defendant was in charge of his motor vehicle for the purpose of the tyre exchange.”

7. [7]
   The relevant provisions of the Transport Operations (Road Use Management) Act 1995 (the Act) are:-

s 79(1)

“Any person who whilst under the influence of liquor or a drug

…

(c) is in charge of a motor vehicle … is guilty of an offence.”

s 79(6)

“Where upon the hearing of a complaint of an offence against subsection (1)(c), (2)(c), (2A)(c), (2B)(c) or (2J)(c) in respect of a motor vehicle the court is satisfied beyond reasonable doubt by evidence on oath that at the material time –

(a) the defendant –

(i) by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle; or

(ii) not being in that motor vehicle, by some action;

had manifested an intention of refraining from driving that  motor vehicle whilst the defendant was under the influence of liquor or a drug or, as the case may be, whilst the concentration of alcohol in the defendant’s blood equalled or exceeded, or exceeded as the case may be the lower concentration referred to in subsection (2), (2A), (2B) or (2J), whichever subsection is material to the complaint; and

(b) the defendant –

(i) was not under the influence of liquor or a drug to such an extent; or, as the case may be,

(ii) was not, by virtue of the concentration of alcohol in the defendant’s blood influenced thereby to such an extent;

as to be incapable of understanding what the defendant was doing or as to be incapable of forming the intention referred to in paragraph (a); and

(c) the motor vehicle in respect of which the offence is charged was parked in such a manner as not to constitute a source of danger to other persons or other traffic; and

(d) the defendant had not previously been convicted of an offence under subsection (1), (2), (2A), (2B), (2D) or (2J) within a period of 1 year prior to the date in respect of which the defendant is charged;

the court shall not convict the defendant of the offence charged.”

s 124(t)

“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 circumstances not known to such person it is impossible to drive or otherwise use the same;”

8. [8]
   The learned Magistrate found, as he was entitled to on the evidence, that the appellant had a concentration of alcohol in his blood of 0.213 milligrams per 100 millilitres of blood at a time between 7.46 p.m. and 9.46 p.m. On the hearing of this appeal no issue has been directed against that finding.

9. [9]
   The presumption provided by s 124(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 (1968) QWN 7).

10. [10]
    As the learned Magistrate stated there is no statutory definition of what is meant by the words “in charge” of a motor vehicle. His Honour Judge McGill in Brooks v Spasovski (2004) QDC 471 examined extensively the law on the subject.  In paragraph 19 of his judgment His Honour referred to the approach of Lord Goddard in Raines v Roberts [1953] 1 WLR 309 when he said: -

“It may be that if a man goes to a public house and leaves his car outside or in the car park 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 someone else. But if he has not put it in charge of someone else he is in charge until he does.”

This view was adopted by the Full Court in Queensland in Kunze v Vowles; ex parte Vowles (1955) ST. R Qd. 591 at 599.

11. [11]
    In his reasons the learned Magistrate took the view that it was not necessary to determine what happened or may have happened to the keys between the scene and when the appellant was processed at the watch-house. He said essentially the only disputed element of the charge was whether the appellant was in charge of the vehicle at the time the police came upon the scene.

12. [12]
    I accept essentially the only disputed element of the charge was whether the appellant was in charge of the vehicle at the time the police came upon the scene.

13. [13]
    The learned Magistrate was satisfied beyond any doubt that the appellant returned the keys to his pocket after showing them to the police at the scene.

14. [14]
    The appellant claims if the record kept at the watch-house showed the appellant had no keys upon him at the time, then that finding should have led the learned Magistrate to conclude he did not have the keys upon him at the scene and he had given charge of the motor vehicle to the witness Geoffrey Hoare.

15. [15]
    This appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate (s 223(1)) Justices Act 1886).  I take that to require me to determine whether there is some error demonstrated on the part of the learned Magistrate rather than make my own decision upon the evidence before the learned Magistrate (Aldrich v Ross (2001) 2 QdR 235, 257).

16. [16]
    It has been held that where findings of fact involve or are likely to involve questions of the assessment of credibility of witnesses, findings must stand unless it can be shown that the decision maker has failed to use or has palpably misused the advantage of having seen the witnesses, or has accepted evidence which was inconsistent with facts incontrovertibly established or which is glaringly improbable (Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.

17. [17]
    In my opinion, the findings by the learned Magistrate that the appellant had keys on him at the scene and did not have keys on him when processed at the watch-house are not necessarily inconsistent findings. That is because something may have happened to the keys, however, the learned Magistrate may not have been able, on the evidence, to determine what happened to the keys. Therefore, it was not necessary for the learned Magistrate to determine what happened or may have happened to the keys.

18. [18]
    In my opinion, the learned Magistrate was not obliged to come to a conclusion that because the appellant had no keys on him at the watch-house, he must therefore have had no keys on him at the scene.

19. [19]
    The learned Magistrate found, as he was entitled to, that as Mr Hoare wanted no further involvement in the matter, it was beyond belief that he would have then gone home armed with the appellant’s keys.

20. [20]
    Further, in my opinion, it was not fatal to the prosecution case that there was no proof the keys were the keys for the motor vehicle. When asked was he the owner, the appellant produced keys and said “Yeah”. He did not say the keys were not the keys for the motor vehicle. Further, a person can be in charge of a motor vehicle without the keys (Atkinson v Fox, No 69 of 1992, per Kimmins DCJ).

21. [21]
    In my opinion, the learned Magistrate did not err in any of the respects claimed by the appellant. In my opinion, the learned Magistrate did not fail to use or palpably misuse the advantage of having seen the witnesses or accepted evidence which was inconsistent with facts incontrovertibly established or which was glaringly improbable. In my opinion, there was evidence to support the learned Magistrate’s conclusion the appellant was in charge of the motor vehicle. In my opinion the findings made by the learned Magistrate must stand.

22. [22]
    Therefore, I dismiss the appeal.