Bennett v Sullivan[2008] QDC 152

[2008] QDC 152

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE SAMIOS

No BD2650 of 2007

BRISBANE 

DATE 28/04/2008

ORDER

HIS HONOUR: The respondent was charged with an offence of having exceeded the speed limit by less than 15 kilometres per hour in a 60 kilometre per hour zone, in breach of Section 20 of the Transport Operations Road Management Rules, Regulation 99.

The offence was alleged to have occurred on the 26th of January 2007 and the trial took place before her Honour Ms Bradford-Morgan on 20 August 2007.  After hearing the evidence, which was documentary evidence on the part of the appellant and evidence from the respondent, the learned Magistrate concluded that a defence based on Section 24 of the Criminal Code had been made and dismissed the charge.

The documentary evidence that supported conclusions that a speed camera was being operated on the roadway, and there was no dispute by the respondent that there was a speed camera and that it had recorded a speed of 72 kilometres per hour in a 60 kilometre per hour zone.  He did not dispute in any way that the equipment was faulty.  What he did say, though, is that he had some previous experience that day with the brakes being faulty. 

The learned Magistrate took the view from the respondent's evidence that he had noticed this on two occasions, however it had been corrected, according to the respondent, and it was open to the learned Magistrate to concluded, as I conclude, that the respondent believed his brakes were adequate for the purpose of driving on the road.

Apparently after the camera had flashed at him, he stopped and repaired the wires.  He tendered a photograph showing the wires, which were indeed cut through.  Of course, one might say that anyone can claim that the brakes did not adequately keep their speed under control, but this became a question of credibility for the Magistrate.  She concluded he was a credible witness. 

It has been argued as an issue on this appeal that the respondent was put on notice about his brakes being faulty and it was not reasonable for him to continue his journey without investigating the problem, and that in any event he was speeding.  The learned Magistrate accepted that he had an honest and reasonable belief, but mistaken belief, that the brakes would reduce his speed during his descent of a steep incline.

The grounds of the appeal are that the learned Magistrate in dismissing the charge erred in law and in fact by finding that a defence under Section 24 of the Criminal Code was available and consistent with the admissible evidence.  Further, that her decision to dismiss the charge was against the weight of the evidence and contrary to law.

Having considered the matter on appeal, I have come to the view that there is no basis on which it can be said the learned Magistrate could not accept the respondent's credibility.  That being the finding that the learned Magistrate made, then it becomes a question of determining what does the respondent's claim amount to in the circumstances.  In my view Section 24 may be misleading in the circumstances of this case.  That seems to draw attention to whether somebody could be mistaken as to the speed they're travelling at.  I have been referred to the judgment of Mr Justice Booking in Kieron v. Grant [1991] 1 Victorian Report at 321.  This judgment is also referred to by his Honour Judge Robertson in Munroe v. Queensland Police Service [2007] Queensland District Court 154.

The relevant passage from Kieron v.; Grant referred to by his Honour Judge Robertson is as follows:

"I would expect the 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 mistake of fact, a fact bearing on whether one was in a speed zone, and there could be a mistake of fact as to speed at which the vehicle is travelling."

Clearly here the respondent did not make a mistake of fact about the speed he was travelling at.  It must have been apparent that he was above the speed limit.  It is arguable that these circumstances more comfortably come within Section 23 of the Criminal Code, that is that his act of exceeding the speed limit occurred independently of the exercise of his will in that the brakes were not functioning properly and he was unable to keep the vehicle within the speed limit.  It is clear because the learned Magistrate accepted his credibility that she must also by implication have accepted it was the respondent's intention to keep within the speed limit.

This may not apply in all cases because the issue of credibility may be found against a respondent in similar circumstances; that is it may not be accepted that the brakes were not functioning properly on the mere say so of a respondent to the case.

In this case the learned Magistrate accepted the credibility of the respondent and accepted that his brakes were faulty, and in those circumstances his excuse was one that the prosecution had to exclude beyond reasonable doubt, and it is clear from the learned Magistrate's decision, and I also find that it cannot be excluded beyond reasonable doubt in the circumstances.

I therefore dismiss the appeal.

...

HIS HONOUR:  I will note on the record that there will be no order as to costs.