DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The following important question for the appellant in this case is whether s 25 of the Criminal Code Act 1899(Qld) (“the Code”) was fully engaged. The learned acting Magistrate, at first instance, despite finding that the prosecution had not proved beyond reasonable doubt that the situation faced by the appellant was not a “sudden emergency”, nevertheless held that the appellant’s decision to drive to obtain Panadol(or a like medication) for a sick child – such circumstance having held to create the “situation of such an emergency” – was a reaction which was proved beyond reasonable doubt as that which was otherwise than what could reasonably be expected of an ordinary person with ordinary powers of self-control. The alleged offence occurred on 4 March 2011, at BribieIsland. The appellant was convicted and sentenced on 13 June 2012.

Principles applicable on appeal

2. [2]
   As outlined in Tierney v Commissioner of Police,^[1]such an appeal as this, pursuant to s 222 of the Justices Act 1886(Qld), is “a rehearing on the evidence given at trial and any new evidence adduced by leave”, involving “a review of the record of proceedings below”; and, in order to succeed, the appellant “needs to show some legal, factual or discretionary error”: see Wilson AJA, with whom McMurdo P and Chesterman JA concurred: at [26]. That review necessarily requires “giving due deference and attaching a good deal of weight to the magistrate’s view”: see Osgood v Queensland Police Service,^[2]quoting from cited authority.

Limited Scope of Issues

3. [3]
   In response to questioning during argument, it was conceded by the respondent’s solicitor that, in seeking to uphold the first instance decision, he was not submitting that the preliminary conclusion by the learned acting Magistrate on the first limb of s 25 of the Code(namely, that the prosecution had not proved beyond reasonable doubt that the situation was not a sudden emergency) was in error: see Reasons at [100].

4. [4]
   Thus the concern of this Court on appeal is with the second limb of s 25 of the Coderelating to an act done under such circumstances of sudden emergency “that an ordinary person possessing ordinary powers of self-control could not reasonably be expected to act otherwise”.

Evidence

5. [5]
   For his part, the appellant’s position on appeal was that the learned acting Magistrate’s conclusion about the appellant having “options” available to seek assistance was in error, at least in so far as that conclusion, on the evidence otherwise accepted by him, was sufficient to lead to a satisfaction beyond reasonable doubt that the appellant’s reaction “by immediately driving” was “outside what I could reasonably expect of an ordinary person with ordinary powers of self-control”: see Reasons at [107].

6. [6]
   So far as credibility was concerned, the learned acting Magistrate accepted that the evidence of both police officers was given “in a forthright manner”, meaning that he was not able to detect anything in their demeanour “which would cause (him) to doubt their veracity”: at [82]. But he also found that the evidence of the appellant “appears to be given in an honest manner” and that he “was not significantly shaken” under cross-examination. Furthermore, he held that the evidence of the appellant’s partner, Ms Patricia Guilfoyle, also “appeared to be given in an honest manner”. His overall conclusion was that, where there were “conflicts of the evidence”, he preferred “the version of the prosecution over the version given by the defence”: at [85]. This was based upon an appearance of “more confident” presentation of their evidence: also at [85].

7. [7]
   Noting those credibility findings, and paying them due deference, it is really not in dispute that it is properly open to find:

• that after midday on the day in question the appellant, a 52 year-old male, was at home caring for a 3½ year-old son (of Mr Brett Price) whom the appellant had looked after on prior occasions;

• that the child had been ill the day before with a temperature and was “excluded” (according the learned acting Magistrate) from kindergarten;

• that at around 6.00 pm the child’s temperature was between 38 and 39 degrees and that over the next five hours the child became more irritable and restless, asking for his father and crying, becoming uncontrollably so;

• that between 7.00 pm and 8.00 pm the appellant tried ringing Mr Price, leaving messages on his answering machine;

• that while waiting for his partner to arrive home from work, the appellant gave the child sips of water, checked his temperature and continued to monitor the child;

• that there was no Panadolor similar medication in the home;

• that his partner arrived home at about 11.10 pm, had been feeling nauseous at work, went straight to the bathroom, experienced a loose motion (plus more nausea) and vomited over the floor;

• that, at that time, the temperature of the child was 39.6 degrees and so the appellant asked Ms Guilfoyle to drive to the Caltex service station to get the Panadolbut she stated she was too sick to drive;

• that she started to try to calm the child down, including by sponging him; but

• that the appellant only then made the decision to drive to the Caltex service station (some 3km or so away, on a police witness estimate) and was intercepted by police some 400 metres before reaching it.

8. [8]
   At the material time, the appellant was disqualified by a court order from holding or obtaining a driver license.

Conclusions on “options” open to the appellant

9. [9]
   After considering the evidence in some detail, the learned acting Magistrate found:

• that the main option that “would be explored” by the reasonable person with the required characteristics would be to obtain “some medical advice”, which “may have been” exercised by telephoning the local hospital, the ambulance service or the health information line;

• that such medical advice “may” have offered “alternatives” to obtaining Panadol;

• that it was only when that advice had been obtained “that the ordinary person would consider driving to obtain Panadol”;

• that the appellant did not obtain such medical advice and did not “actively” explore any other option, including calling an ambulance (as he was concerned he would have to pay); and

• that the appellant did not ring a hospital or doctor for advice “as he thought he was intelligent enough to act on information that he had grown up with to control the situation”.

10. [10]
    These conclusions followed the earlier conclusion that the emergency had arisen suddenly and in the context that the learned acting Magistrate had “no doubts” that an ordinary person with a valid driver license “would have driven” to obtain Panadol: see Reasons at [105]. (The defence is not excluded, however, if this “ordinary” person “could” have acted as the appellant did in the agony of the particular moment: see [15] below for a full examination.)

11. [11]
    The learned acting Magistrate explicitly and implicitly found that the appellant’s partner worked as an “enrolled endorsed nurse” – though the not materially different evidence at trial was that she was working as an assistant in nursing whilst she was studying - and that there was a discussion between her and the appellant about Panadol. Her evidence was also to the effect that the child was really crying and restless and that, from her own experience, children can take Panadolfrom “about two months”.

12. [12]
    During oral submissions by the solicitor for the respondent, I received assurances both from him and from counsel for the appellant that the appellant’s evidence concerning “options” available to the appellant were those set out at paragraph [9.4] of the written Outline of Submissions on behalf of the respondent.

13. [13]
    On reviewing that identified evidence, it is clear:

• that, as for calling an ambulance, the appellant did not think that the child’s temperature has escalated “that far yet”;

• that, if a vehicle had notbeen at his disposal, then, when it “got to that stage”, he probably would have rung an ambulance and would have had to wear the cost (believing that he had to pay for an ambulance and was not financially able to);

• that he was trying to stop “it” becoming an ambulance matter;

• that, although he considered walking, he thought it would have been impractical as he would have to leave three other children “basically by themselves” (and, in any event, it would have been for a very far distance);

• that the neighbours were “not young” and would be “in retirement age” and that he would feel uncomfortable asking them to actually get out of bed at about 11.00 pm;

• that he could not foresee any other way of getting children’s Panadol“or something like that” and that, in particular, there was no public transport at that time and, concerning a taxi, while he did consider it, he did not have the funds or the means to be able to pay for a taxi “there and back”;

• that the CabooltureHospitalwas about half an hour away;

• that he did not ring “a doctor’s, like a Bribie Island medical practice, or something of that nature”, that he did not ring the hospital for advice and that he did not call a locum service to come to his house, stating that he “couldn’t have used those options”;

• when pressed with whether he could have walked to a “nearby hotel”, he stated that he “didn’t understand why he would have” (since it would have been “unreasonable at that stage”); and

• that he informed the police that he was getting Panadolfor a sick child.

Appellant’s arguments

14. [14]
    The main submission made for the appellant was that the prosecution had led no evidence that the seeking of any medical advice would have provided an alternative to seeking to obtain some medication such as Panadol.

15. [15]
    For the respondent’s part, it was submitted that, although no evidence was provided by the prosecution that any medical advice would have provided an alternative to obtaining medication, the point was that it would have been “something an ordinary person would have tried to find out prior to breaking the law” and that the acting Magistrate’s decision “would likely have been different if the appellant had made attempts to find out such information prior”.

Authorities on “ordinary person”

16. [16]
    In a very similar set of circumstances, although involving an ill adult, McGill SC DCJ considered this provision in Berbic v Steger.^[3]  There, even though it was found that the driver did not know what was wrong with his passenger (except that she was very ill) and that the driver was very concerned for the passenger’s welfare and could not reasonably be expected to know whether or not her life was in danger, the magistrate had held that it “would be reasonable” to call an ambulance and that an ordinary reasonable man would simply have done that rather than drive while disqualified: at [10]-[11]. On appeal, it was held, first, that, relevantly, in order to negative the defence, the tribunal of fact must be satisfied beyond reasonable doubt that, in the circumstances that it found, “the ordinary person could reasonably be expected to act otherwise” (emphasis added): at [17]. This meant that, accordingly, if in such circumstances it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the accused did, the defence would nothave been excluded: also at [17]. Secondly, it was held that the ordinary person means an ordinary person “in the position of the accused” (i.e. someone who had lost his license and been disqualified) and that the person was one who had “not only the power of self-control of the ordinary person, but also the fortitude and sound of judgment of the ordinary person, with a degree of respect for the law that that person would have”: at [30]. These last aspects seem to have as their basis what was phrased in Berbic as “the question of proportionality and reasonableness”, stated to mean that “the seriousness of the emergency must be weighed against the seriousness of criminal conduct in question, by reference to the standard of the ordinary person with ordinary powers of self control”: at [36]

17. [17]
    In Berbic,it was held that prosecution had not proved beyond a reasonable doubt that no extraordinary emergency existed and, likewise, that it had not proved that an ordinary person possessing ordinary powers of self-control “would” in such circumstances have taken some different course, such as stopping and calling an ambulance or taxi, rather than driving the passenger directly to the hospital (with the last proposition, at the very least, being stated in terms of that “there would have to be some reasonable doubt about that matter”): at [42].

18. [18]
    McGill SC DCJ had earlier considered this particular provision in Riley v Fuchs,^[4]dismissing an appeal where the defence had been found to exist at first instance.

19. [19]
    In the Court of Appeal of the Supreme Court of Western Australia in Johnson v The State of Western Australia^[5]it was held that the equivalent Western Australian provision, as it stood prior to an amendment of it there in 2008, “reflective though it is of the common law defence of necessity” was “not constrained by or limited to the precise elements (whatever they may be) of the common law doctrine”, because there was nothing ambiguous about the provision and it was to be construed according to its tenor: at 137 [97].

20. [20]
    The consequence of that approach is that it may well be distracting to concentrate too much on the seemingly analogous aspects of the common law defence of necessity, particularly that concerning proportionality (as a distinct concept beyond what self-control entails). When discussing it in R v Rogers,^[6]Gleeson CJ (in the New South Wales Court of Criminal Appeal) identified, among the relevant elements involved in the defence of necessity, this element of “proportion”. As discussed by him, it would appear to be the element that is closest to the import of the second limb of the test in s 25 of the Criminal Code. In a quote from Victorian authority, reference was made to the element of proportionality simply meaning that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided - but using the exact words of R v Loughnan,^[7]it was stated, “Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril?”: at 545.

21. [21]
    As so expressed, it would appear that there is a near identity, if not an exact equivalence, between proportionality and the acts of a reasonable man in the position of an accused in that concept.

22. [22]
    Taking that approach as a touchstone, it can be accepted that in Rogers the later reference by Gleeson CJ to the concept of reasonableness as introducing into the consideration of possible alternatives an appropriate concession to practical reality, while accepting that it is not intended to provide scope for the making of choices or value judgments of a kind which undermine the principle itself, expresses the rational outcome that reasonableness is not designed to allow people to choose for themselves whether to obey the law: at 547. But Gleeson CJ went on to then examine what considerations of practical factual relevance existed there, relevant to “the issues of reasonableness andproportionality” (emphasis added): at 548. The examination so undertaken appears to demonstrate that the concept in s 25 of the “ordinary person” possessing ordinary power of self-control while stated to be based upon reasonableness alone is one which, nevertheless, itself embraces, where applicable, aspects of proportionality – despite absence from the actual words themselves used in the second limb of the s 25 test. It may be that the reasonable ordinary person is one who does not always have the disabling characteristic of being a prisoner (as in Rogers) or disqualified from driving (as here). If that were to be so, as canvassed in Rogers, the requirement then is to pay close attention to the nature of the principle involved in the excuse and its relationship to the facts of the case: at 548. In Rogers, at least in theory, it would involve the nature of the excuse and whether surrender of the prisoner was undertaken when safety was reached or, here, it would involve the nature of the excuse and whether the driving went beyond the required trip and involved some personal benefit. But, for present purposes, I am content to approach this on the basis that the ordinary person bears, if applicable, the disabling feature of being disqualified from driving not at the time of apprehension but at time of first engagement with the “offence”.

23. [23]
    There also seems little value in examining the further defence of “duress of circumstances” in a case such as this, identified by Chesterman J (as he then was) in State of Queensland vNolan,^[8]and described there as a similar but not identical defence to invoking the doctrine of necessity: at 458 [19].

24. [24]
    Lastly, as analysed by the Queensland Court of Appeal in R v GV,^[9]there is no onus on an accused to raise a reasonable doubt where s 25 is prospectively engaged since, once an accused person has satisfied the evidentiary onus, the onus of excluding the operation of the excuse beyond reasonable doubt is on the prosecution: at [23]. Usefully, that judgment contained a reference to a much cited text of R S O'Regan as proposing that s 25 provides a residual defence to protect the “morally innocent” where other defences do not apply: at [26].

Relevant error?

25. [25]
    In Berbic, it was held that the correct approach to a challenge on an appeal to a finding of fact based on a question of community standards (which was not the express subject of evidence) by a magistrate, is not to conclude that it is analogous to a situation where, on appeal by way of rehearing, the appellate court has to make up its own mind on a matter of inference from primary facts which were either not in dispute or found by the court at first instance: at [46]. It was held, therefore, that there should be interference only if there was some error of law made such that it was appropriate to consider the question afresh, or if the appellate court was satisfied that the decision was clearly wrong: at [47]. In particular, it was held that it must be right for a court on appeal to interfere if it is necessary to do so to prevent injustice (i.e. if the court thinks that upon the whole of the evidence it was not open to the magistrate to be satisfied beyond reasonable doubt that the accused was guilty): also at [47]. I intend, especially where I have been alerted to no authoritative consideration to the contrary, to follow that approach.

Analysis

26. [26]
    What is clear is that the prosecution led no evidence about what the result would have been at the time if the appellant had exercised any of the choices that the court at first instance held were reasonably open for him. Importantly, there was no evidence that the advice given would have been be to the effect that it was unnecessary to obtain relevant medication for such a child, such as Panadolprovided. In the absence of relevant contrary evidence, it is not beyond reasonable doubt that the ordinary person possessing ordinary power of self-control in the sudden emergency then being confronted could reasonably be expected to act as if there were no other realistic alternative choices to driving, even for a person disqualified from driving.

27. [27]
    Apart from speculative medical advice, the other identified choices were:

• to call an ambulance (about which the prosecution led no evidence that it was necessary to do so, or even that the ambulance service would have responded, consequent upon asking questions as to the condition of the child);

• to call a taxi (in circumstances where it was not established by the prosecution that the appellant’s assertions of being indigent were not true – with the same conclusion applying, as in Berbic, to the appellant’s apparently reasonable belief about having to pay for the ambulance service);

• to call upon neighbours (when it was not established that they were not elderly - contrary to that asserted by the appellant - and were as unlikely to have children’s medication);

• to go to an hotel (when it was not in evidence that any hotel was accessible, much less that there would have been any chance of assistance there); and

• to call a locum service (in circumstances where the appellant asserted that he knew that there was not one available – even though this knowledge was obtained from a hearsay source which the learned acting Magistrate indicated was a matter or weight and not of admissibility).

• In any event, it appeared to be the honest, even if mistaken, belief of the appellant that the circumstances of the child’s illness had not escalated to the point of ringing an ambulance or calling the police.

28. [28]
    On those conclusions so reached, I am - like McGill SC DCJ was in Berbic^[10] - persuaded that the learned Magistrate fell into error. In the circumstances, and in light of the considerations that I have canvassed, it is not open to be satisfied beyond reasonable doubt that the “defence” under s 25 of the Criminal Codewas not available with respect to the second limb of that defence, as an excuse available at law.

29. [29]
    In consequence, it is appropriate to set aside the conviction and order that the charge be dismissed.

30. [30]
    ORDERS:  

31. [31]
    The orders to be made are:

1. (a)
   The appeal is allowed.

2. (b)
   The conviction is set aside.

3. (c)
   The charge is dismissed.

32. [32]
    As to costs, I give both parties until 4.00 pm on 7 March, 2013 to file and serve submissions on costs, unless agreed (when I will then entertain an application for an order sought by consent).