Munroe v Queensland Police Service
[2007] QDC 154
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- Unreported Judgment
- Munroe v Queensland Police Service[2007] QDC 154
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Munroe v Queensland Police Service[2007] QDC 154
Munroe v Queensland Police Service[2007] QDC 154
DISTRICT COURT OF QUEENSLAND
CITATION: | Munroe v Queensland Police Service [2007] QDC 154 |
PARTIES: | NEVILLE MUNROE(Appellant) AND QUEENSLAND POLICE SERVICE(Respondent) |
FILE NO: | Maroochydore 26/2007 |
DIVISION: | Applications |
PROCEEDING: | Section 222 Appeal |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 13 July 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 13 July 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | 1) Appeal against conviction be dismissed 2)Original sentence set aside. Ordered that Mr Munroe be absolutely discharged under section 19(1) of the Penalties and Sentencing Act |
CATCHWORDS: | Appeal against conviction; exceeding speed limit; where appellant had not seen speed sign; whether mistake of fact or mistake of law; application of ss 342 , 343 Transport Operations (Road Use Management-Road Rules) Regulation 1999; Appeal against sentence; whether original penalty was excessive. Cases cited: Kieran v Grant (1991) 1 V.R. 321 Legislation: Criminal Code s 24 Transport Operations (Road Use Management-Road Rules) Regulation 1999 (Qld) ss 342, 343 |
COUNSEL: | Mr A Dillon for the Respondent |
SOLICITORS: | Mr Munroe appeared on his own behalf Office of the Director of Public Prosecutions for the Respondent |
- [1]This is an appeal now against both conviction and sentence in respect to a hearing on the 10th of January 2007 in the Maroochydore Magistrates Court before his Honour Mr Parker, Magistrate.
- [2]Mr Munroe was convicted of one charge of disobeying the speed limit on the 28th of September 2005, in that it was alleged that he travelled on Petrie Creek Road, Nambour at a speed in excess of the speed limit which was 60 kilometres an hour, and he in fact travelled at 79 kilometres an hour.
- [3]There was no dispute before Mr Parker that Mr Munroe was the driver, nor that the vehicle was travelling at 79 kilometres an hour. The vehicle was in fact photographed by a speed installation camera under the overpass at Petrie Creek Road, in a position where it is apparently often set up.
- [4]Mr Munroe gave evidence that, earlier on in the day, he had been in the motor vehicle as a passenger when it was being driven by a friend and they had proceeded along Petrie Creek Road to a point where the vehicle entered a service road prior to the overpass. His friend wished to examine a property, so Mr Munroe took over the driving in the service road and re-entered Petrie Creek Road and headed up under the overpass where he was photographed.
- [5]There was no dispute that the only 60 kilometre speed advisory sign which altered the speed limit from 80 to 60 in the area was between one end and the other of the service road on Petrie Creek road, so that, by entering the service road, a driver travelling in that direction effectively by-passed the sign.
- [6]It was accepted that Mr Munroe did not see the 60 kilometre sign; obviously he could not. And the only issue that was conducted before the trial was whether he was honestly and reasonably mistaken as to a question of fact, and whether the prosecution, if that defence was available, had excluded beyond a reasonable doubt that, at the time he was driving, he was honestly and reasonably mistaken as to the relevant speed limit.
- [7]Mr Parker, after hearing submissions from both Mr Munroe and the Police Prosecutor, rejected that submission, holding that the operative mistake in the circumstances was a mistake of law.
- [8]In my view, that conclusion is probably correct. However, I am satisfied that section 342 and 343 of the Transport Operations (Road Use Management-Road Rules) Regulation 1999, by implication, excludes the operation of section 24 to a motorist in these circumstances.
- [9]That would make sense to me because of the public policy issues which are referred to by Mr Justice Brooking in a decision of Kieran v Grant (1991) 1 V.R. 321 at 323, where his Honour said (albeit in relation to a common law jurisdiction):
"I would expect a provision of this kind to require drivers to keep within the applicable speed limit at their peril. If the defence of honest and reasonable belief were applicable, then mistakes could be of two kinds: there could be a mistake of fact, a fact bearing on whether one was in a speed zone, and there could be a mistake of fact as to the speed at which the vehicle was travelling."
- [10]In my view, the public policy issues implicit in sections 342 and 343 are for obvious reasons. If section 24 was available to drivers charged with exceeding the speed limit, then, firstly, one would imagine that the defences based on that section would be a large number indeed; and, secondly, the authorities would have to, as it were, place speed advisory signs at much more regular intervals on the road than is presently applicable, which, as a matter of public policy, would be inequitable as a use of public funds.
- [11]So, in those circumstances, I am satisfied that the appeal against conviction has no basis and I order that the appeal against conviction be dismissed.
- [12]Very fairly and properly, Mr Dillon, who appears for the respondent, has not objected to an amendment to Mr Munroe's notice of appeal to appeal against sentence. It is clear to me that, after Mr Parker convicted Mr Munroe of the offence by rejecting the argument based on section 24, he was diverted by Mr Munroe's insistence on speaking about the mistake of law and mistake of fact issue from allowing Mr Munroe, a self-represented defendant, to make a proper submission in relation to penalty.
- [13]Mr Parker recognised in his own remarks that the circumstances here were mitigating factors, as clearly they were. It was a most unusual situation, such that Mr Munroe has obtained advice from the police that had he sought a withdrawal of the charge in all the circumstances as an exercise of police discretion, that likely would have happened. He chose, unfortunately, to proceed with the Court hearing, which is understandable, given that he is a lay person.
- [14]In those circumstances, and given that the police officer advised Mr Parker that the usual penalty was around $150, the fine of $200, in default two days' imprisonment, $67.90 costs, in default of one day, was an excessive penalty.
- [15]I set aside that whole order and I order that Mr Munroe be absolutely discharged under section 19(1) of the Penalties and Sentencing Act.