Stancombe v Commissioner of Police
[2017] QDC 276
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- Stancombe v Commissioner of Police[2017] QDC 276
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Stancombe v Commissioner of Police[2017] QDC 276
Stancombe v Commissioner of Police[2017] QDC 276
DISTRICT COURT OF QUEENSLAND
CITATION: | Stancombe v Commissioner of Police [2017] QDC 276 |
PARTIES: | ANNA-MARIE FRANCES STANCOMBE (appellant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | BD 392/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal s 222 Justices Act |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 27 October 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 October 2017 |
JUDGE: | Clare SC DCJ |
ORDER: |
|
CATCHWORDS: | FAIL TO STOP AT RED LIGHT – FAILURE TO STOP FOR YELLOW LIGHT – AMENDMENT OF COMPLAINT AFTER EVIDENCE CLOSED TORUM Regulations ss 56,57 Justices Act 1886 ss 222, s 48 (1), s 49 |
COUNSEL: | Self-represented appellant Ms Rodriguez for the respondent |
SOLICITORS: | Director of Public Prosecutions for the respondent |
- [1]On 17 January 2017, Anna-Marie Stancombe was found guilty of failing to stop for a yellow traffic light. This is her appeal. It is by way of rehearing, pursuant to s 222 of the Justices Act 1886. Ms Stancombe defended herself at the trial and prosecuted the appeal. She appeared today by telephone.
- [2]Ms Stancombe was arraigned on a charge of failing to stop for a red light. Upon the close of the evidence, the charge was changed to failing to stop for a yellow light. She was convicted of that charge. The Grounds in the Notice of Appeal contend that the magistrate erred in allowing the charge to be changed, and that the conviction was without sufficient evidence.
- [3]It was common ground at the trial that on the day in question, Ms Stancombe was the driver of a car on Morayfield Road where there was traffic lights.[1] There were three critical elements required for the offence of failing to stop at a yellow light:
- (1)The traffic lights were yellow when Ms Stancombe approached them;
- (2)The conditions were safe for her to stop in front of the stop line; and
- (3)She did not stop before the stop line.
- [4]Police bore the burden of proof. Ms Stancombe could only be convicted if, on the evidence as a whole, there was no reasonable doubt about all three elements.
- [5]The two police officers present at the scene were called. Ms Stancombe gave evidence on her own behalf. The witnesses all agreed on a number of things, including that:
- (a)Ms Stancombe drove across the intersection;
- (b)On her approach to the lights, she was travelling north, from the left-hand lane;
- (c)There was a car ahead of her and one behind her;
- (d)The police car was in the right lane, a few metres back from her vehicle; and
- (e)The lights were not green when Ms Stancombe drove across the intersection.
- [6]The driver of the police vehicle, Constable Turner, swore that the lights had already turned yellow as Ms Stancombe approached the white line before the intersection. The car ahead of her drove through the yellow light and she went through after him. The light turned red when her car was still half way across the white line.
- [7]Constable Turner’s passenger was Senior Constable Gregg. She testified to seeing the lights turn red. She could not speak to the position of Ms Stancombe’s wheels at that time, but the car proceeded through the intersection. Under cross-examination, Officer Gregg explained: “Your whole car was proceeding through the intersection when I observed the light to be red”.[2]
- [8]The officers pulled over Ms Stancombe just up the road. The conversation was recorded by a police body camera. Ms Stancombe repeatedly said: “I went through the orange. It was an orange light. The guy in front of me did exactly the same thing.”
- [9]When cross-examined at the trial, she said: “I haven’t denied I went through on the orange light but I totally deny …that it was a red light.”[3]
- [10]Ms Stancombe’s evidence-in-chief however, was that she had a green light. She said she drove over the white line when the light was green, but then stopped because traffic was backed up on the other side of the intersection. She could not back up because there were cars behind her. She then drove forward across the intersection on a yellow light.
- [11]After Ms Stancombe had completed her evidence, the prosecutor applied to change the charge. The magistrate allowed it. Ms Stancombe objected. The magistrate allowed the case to proceed, and after hearing submissions, made the finding of guilt. Ms Stancombe asked for an adjournment after she was sentenced. By that time, the case was over. There was nothing to adjourn.
- [12]On the appeal, Ms Stancombe contended the change to the charge was wrong, the case should have been dismissed because the matter was tried as a red light charge, and the evidence did not support that charge. She was deprived of natural justice and a proper opportunity to defend the new charge. She claimed she would have adduced evidence that it was unsafe to stop, if the yellow light charge had been in place. Reading from her written outline: “My defence is that I could not stop safely. I would of endangered lives and I had a duty to clear the intersection. None of this evidence was heard in my defence as I was not defending an amber light charge.”
Power to Amend
- [13]There is power to amend a complaint and summons in s 48(1)(c) Justices Act. The circumstances for its exercise are confined by that provision. They only arise after evidence has been adduced at the hearing. The section is directed to the situation where there is a difference between the complaint and the evidence adduced in support of it. The provision is therefore specifically directed at an amendment of the charge after the relevant prosecution evidence has been heard. The discretion to allow the amendment is limited to what appears necessary or desirable in the interests of justice.
- [14]The provision speaks of the “amendment” of the complaint. It seems to me in the statutory context that would encompass a change of charge in the complaint, subject to what is necessary or desirable in the interests of justice. The change could only be in the interests of justice if it would cause no prejudice to the accused.[4]
- [15]The magistrate did not give reasons for allowing the application. It appears he failed to properly consider the exercise of his discretion. The prosecutor had informed him he had no discretion by emphasising the mandatory nature of s 48(1)(d). S 48(1)(d) applies when objection is taken to the variance. I do not think an application by a prosecutor to correct the charge to fit the prosecution evidence could amount to “an objection” within the meaning of s 48(1). In the absence of objection, the exercise of the power was discretionary by virtue of s (1)(e). In either case, the power could only be exercised in so far as was needed or desirable “in the interests of justice”.
- [16]The offence of failing to stop at a red light is set out in s 56 of the TORUM regulations. The offence of failing to stop for a yellow light is set out in s 57. The obvious point of distinction is the colour of the traffic lights . The elements otherwise almost match, save for one critical difference: s 57 makes the failure to stop an offence, only if would be safe to do so. That is not an element of the s 56 offence. The requirement to stop at a red light is unqualified.[5] The trial proceeded for the s 56 offence. That charge could not be defeated on the issue of whether it was safe to stop. It was replaced by a charge that was dependent on that very issue, but only after all the evidence had closed.
- [17]It seems to me that goes to the root of a trial. The magistrate should not have allowed the trial to continue. He could have refused the application and dismissed the charge or allowed the amendment and adjourned the matter for retrial.[6]
- [18]Ms Stancombe submits the court should decide the matter on the original charge and dismiss it. It is not an attractive argument that police be allowed to change charges after the evidence has closed. Such circumstances could constitute an abuse of process. Here, the correct charge was a matter of fine degree. On the prosecution evidence, the lights were changing. The evidence at trial that Ms Stancombe ran the yellow light was compelling. The admissions she made at the scene seem so clear that her claim of the green light at trial was just not credible.[7] Further, her testimony of stopping on the green light would tend to contradict a claim that it was unsafe to stop. In my view, the application to amend the complaint and summons should have been allowed.
- [19]Because there was a fundamental failure to try the charge for which Ms Stancombe was convicted the appeal must be allowed.
Order
- The appeal against conviction is allowed.
- The finding of guilt is overturned and the matter is remitted to the Magistrates Court.
Footnotes
[1] The intersecting road was called Elliot Street on one side of Morayfield Road and Esme Street on the other side. Ms Stancombe was concerned that the charge referred to Esme Street rather than Elliot Street as the intersecting road, but it does not matter. The intersection was sufficiently identified.
[2]Transcript 1-26.
[3]Transcript 1-36.
[4]Paugler v Hall [2002] QCA 353.
[5] Subject to the defence of emergency under the Code.
[6]Although there is power to adjourn in s 49 of Justices Act, an adjournment would not have assisted Ms Stancombe in circumstances where the evidence had concluded.
[7]Her claim on appeal of unsafe conditions to stop is yet a third version.