Fitzpatrick v Queensland Commissioner of Police
[2008] QDC 109
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- Unreported Judgment
- Fitzpatrick v Queensland Commissioner of Police[2008] QDC 109
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Fitzpatrick v Queensland Commissioner of Police[2008] QDC 109
Fitzpatrick v Queensland Commissioner of Police[2008] QDC 109
DISTRICT COURT OF QUEENSLAND
CITATION: | Fitzpatrick v Queensland Commissioner of Police [2008] QDC 109 |
PARTIES: | REBECCA ANNE FITZPATRICK Appellant v QUEENSLAND COMMISSIONER OF POLICE Respondent |
FILE NO: | 291 of 2007 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Maroochydore |
DELIVERED ON: | 16 May 2008 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 24 April 2008 |
JUDGE: | K S Dodds, DCJ |
ORDER: | The appeal is dismissed |
CATCHWORDS: | APPEAL – Driving a motor vehicle with a blood alcohol concentration exceeding the general alcohol limit – defence of sudden or extraordinary emergency Criminal Code 1899 (Qld) s 25 Justices Act 1886 (Qld) s 222 & s 223 Transport Operations (Road Use Management) Act 1995 (Qld) s 79(2) Cases cited: Allesch v Maunz (2000) 203 CLR 172 Warren v Coombes (1979) 142 CLR 531 Aldrich v Ross [2001] 2 Qd R 235 at 255 Parsons v Raby [2007] QCA 98 Stevenson v Yasso [2006] QCA 40 |
COUNSEL: | D Locantro (sol) for the appellant P Stein (sol) for the respondent |
SOLICITORS: | Locantro Lawyers for the appellant Director of Public Prosecutions for the respondent |
- [1]This is an appeal against conviction. On 6 December 2007 the appellant was convicted of an offence that on 30 June 2007 at Mooloolaba whilst she was over the general alcohol limit but not over the high alcohol limit she drove a motor vehicle on a road namely Brisbane Road, Mooloolaba. At the time she was the holder of a Provisional drivers license. She was 18 years of age, almost 19, born on 12 September 1988.
- [2]It is convenient to briefly set out the evidence before the Magistrate.
- [3]According to the appellant she and a girlfriend, Jessica Hoy (Jess) on the evening of 29 June 2007 had gone to Mooloolaba in the appellant’s motor vehicle. Initially they had some alcoholic liquor down by the river and then went to Friday’s, a venue serving alcoholic liquor. Later they went to another similar venue, O'Malley’s. At each venue they consumed alcoholic liquor. Late in the evening Jess became angry with and abusive to the appellant. The appellant left and went to her parked motor vehicle, got into the passengers seat, put her keys in the centre console and went to sleep. Sometime later she was awoken by Jess banging on the window. She unlocked the car, slid across to the driver’s seat and Jess got into the front passenger seat, yelling at her “why did you leave me”. She appeared angry. Jess then started to take some money from the centre console. The appellant challenged this, got out of the car and went around to the passenger side. Jess got out. The appellant said she was going to phone the police and began to do so. Jess said to her to hang up and then punched her in the nose. She fell back to the car and went down and said to Jess to get her some tissues. Her first instinct was to get away. She ran around to the driver’s side of the car to do that. Jess got into the car which must have been the front passenger seat, because that’s where she was a little later when the police observed the vehicle driving erratically and stopped it. The appellant was driving. The appellant also said that her mother was a nurse and she thought she needed help so she drove. She was bleeding. When the police stopped her she had a bloody tissue with a fair amount of blood on it in her hand. She told the police she’d been punched.
- [4]There were two police officers in the police car which stopped the appellant’s vehicle. They first observed the appellant’s motor vehicle driving erratically three to four hundred metres away from Friday’s and they followed the vehicle for about another four hundred metres before stopping it. They said they saw no bloody tissue, no blood, no sign of injury to the appellant and no signs that she had been crying. They had no recollection of the appellant telling them at the roadside where they intercepted her that she had been punched. The first they heard the appellant say anything like that was later at the police station a little before the test on the breath analysing instrument. After the roadside breath test, one of the police officers drove the appellant’s car from the road to a roadside parking area for safety. As they were about to leave the area for the police station, the appellant said words to the effect “we’ve got to give Jess a lift, I want to give Jess a lift home, can’t leave her behind, she’s my friend”. During the journey to the police station the appellant and Jess were sitting in the back of the police car apparently friendly, cuddling each other. One of the police officers thought he heard one of the females, he thought it may have been Jess, say sorry about something. At the police station during preparation for the test on the breath analysing instrument while being asked some questions prior to the test, the appellant disclosed that she’d put a mint into her mouth briefly during the journey to the police station, contrary to instructions to her by one of the police officers. She then said “I know you guys don’t have any sympathy for girls”. A police officer replied they had sympathy for everyone but they had their job to do. The appellant then said “she just punched me so hard on the nose, you guys”. The police officer responded “Jess did?” The appellant said “yeah”. This was the first time either police officer recollected anything being said about Jess punching the appellant.
- [5]Jess gave evidence. Her evidence was similar to that of the appellant about the night out, abusing the appellant who then left her company, later going to the appellant’s car where she saw the appellant asleep in the front passenger seat, banged on the window, the appellant unlocked the car and slid over to the driver’s seat, she got into the front passenger’s seat and started to take money from the centre console, the appellant got out of the car. She said she remembered bits and pieces, verbally fighting, pushing and shoving, doors being slammed, and then the appellant with a bloody nose. She remembered the appellant calling the police and telling her not to and then the next thing they were driving and then stopped by the police. The appellant’s nose was bleeding. She (Jess) got some tissues.
- [6]At the trial it was submitted by the legal representative appearing on behalf of the appellant that her driving of her motor vehicle occurred in circumstances of sudden or extraordinary emergency such that an ordinary person possessing ordinary powers of self control could not reasonably be expected to have acted otherwise.[1] This was rejected by the Magistrate.
- [7]The appeal focussed on this rejection. The grounds of appeal were:
- that the Magistrate erred in not finding sudden or extraordinary circumstances existed;
- erred in not considering section 25 of the Criminal Code;
- had the Magistrate done so, she could not have found the prosecution had excluded section 25 beyond reasonable doubt;
- the Magistrate did not consider the state of mind of the appellant at the time of driving nor the particular circumstances acting upon the mind of the appellant at the time of driving.
- [8]In her reasons for her decision, the Magistrate referred to the evidence I have set out. She accepted that the punch occurred. She went on to consider whether the evidence raised the provisions of section 25, that is, whether the evidence disclosed circumstances of sudden or extraordinary emergency such that an ordinary person possessing ordinary powers of self control could not reasonably be expected to do otherwise than drive the motor vehicle.
- [9]Her Honour considered what she saw as the apparent contradiction in the appellant’s case, that she wanted to get away so she got into the car to drive, but Jess also got into the car before she drove, and was in the car as she drove. She also considered the other or additional reason for getting in the car and driving, that the appellant’s mother was a nurse and she thought she needed treatment. She considered that was contradicted by the evidence about the appellant’s behaviour when confronted by the police, what she spoke to the police about, the absence of any reference to needing medical attention. She concluded that she was “not satisfied section 25 had been properly raised. I am not satisfied that this is in fact an extraordinary emergency. It was a fight between two very drunk friends. Therefore the prosecution does not have to negative it”.
- [10]Appeals such as this are by way of rehearing on the evidence before the Magistrate except where leave is granted to adduce fresh, additional or substituted evidence.[2] The appellant must show that the Magistrate’s decision involved error about the facts or the law.[3] The appeal court is in as good a position as the Magistrate to draw inferences from undisputed facts or disputed facts where findings of fact have been made by the judicial officer at trial.[4] The task for the appellate court is “to make (its) own determination of the issues on the evidence giving due deference and attaching a good deal of weight to the Magistrate’s view” per McMurdo P Stevenson v Yasso [2006] QCA 40 at paragraph 36, referred to with approval by Jerrard JA in Parsons v Raby [2007] QCA 98 at paragraph 23.[5]
- [11]Section 25 of the Criminal Code is an exculpatory provision. Where the evidence before a court trying a criminal charge is such that a defendant may have been faced with circumstances which may support a claim that an act or acts essential to the offence were a reaction to circumstances which may be regarded as sudden or extraordinary emergency, the court is required to consider whether the prosecution has established the defendant is criminally responsible for the offence. That is, that the exculpatory provision does not apply.
- [12]There was evidence before the Magistrate which required her to consider whether it was proven the appellant did not drive in circumstances contemplated by section 25. The onus was on the prosecution to prove criminal responsibility beyond reasonable doubt. To convict she was required to be satisfied beyond reasonable doubt that the appellant’s act in driving the motor vehicle on the road with the blood alcohol concentration she had was not done under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary powers of self control could not reasonably be expected to do otherwise.
- [13]It is apparent from the Magistrate’s reasons that she concluded the driving was not done under a sudden or extraordinary emergency. However she misdirected herself.
- [14]That is not the end of the matter. I consider the Magistrate’s findings about the evidence expressed in her reasons entirely supportable. The ordinary person possessing ordinary powers of self control is not a person whose faculties are affected by liquor. In this case it is the ordinary 18, almost 19 year old young woman. The source of violence she claimed to want to get away from was sitting with her in the car as she was driving. The evidence of the police officers about their observations of the appellant, what she said to them, her behaviour with Jess, also told against the claim of driving because of sudden or extraordinary emergency such that an ordinary person possessing ordinary powers of self control could not reasonably be expected to act otherwise. It must be acknowledged that the observed driving was not over any great distance from where the car had been parked before it was stopped by the police. However it seems to me the evidence plainly established beyond reasonable doubt the appellant’s driving of the motor vehicle when observed until stopped by the police was not excused by the provision of the law enacted in section 25 of the Criminal Code.
- [15]The appeal is dismissed.