Mann v Sunshine Coast Regional Council
[2017] QDC 277
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Mann v Sunshine Coast Regional Council[2017] QDC 277
- Add to List
Mann v Sunshine Coast Regional Council[2017] QDC 277
Mann v Sunshine Coast Regional Council[2017] QDC 277
DISTRICT COURT OF QUEENSLAND
CITATION: | Mann v Sunshine Coast Regional Council [2017] QDC 277 |
PARTIES: | JOSHUA MANN (Appellant) |
AND | |
SUNSHINE COAST REGIONAL COUNCIL (Respondent) | |
FILE NO/S: | 1979/17 |
DIVISION: | Appellate |
PROCEEDING: | Appeal under s 222 of the Justices Act 1886 |
ORIGINATING COURT: | Magistrates Court at Caloundra |
DELIVERED ON: | 21 November 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 November 2017 |
JUDGE: | Porter QC DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where there is an appeal against conviction – where the construction of the definition of built up area is in dispute – whether the area where the appellant parked his vehicle satisfied the definition of a built up area properly construed – where the respondent applies to lead fresh evidence on appeal to seek to sustain the conviction on new grounds – whether the court is satisfied that there are special grounds for giving leave to adduce fresh evidence. Legislation Justices Act 1886 (Qld) ss 222, 223 Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 197(1) Cases Gallagher v The Queen(1986) 160CLR392 Lambert v Queensland Police Service [2017] QDC 147 Pavlovic v The Commissioner of Police [2006] QCA 134 |
COUNSEL: | Appellant:W Ness Respondent: N Nicolson |
SOLICITORS: | Respondent: Heiner and Doyle |
Introduction
- [1]This is an appeal against conviction pursuant to section 222 Justices Act 1886 (Qld). On 8 May 2017, in the Caloundra Magistrates Court, the appellant, Dr Mann, was found guilty of an offence under Regulation 197(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). That regulation provides:
Stopping on a path, dividing strip, nature strip, painted island or traffic island
(1)A driver must not stop on a bicycle path, footpath, shared path or dividing strip, or a nature strip adjacent to a length of road in a built-up area, unless the driver—
(a)stops at a place on a length of road, or in an area, to which a parking control sign applies; and
(b)is permitted to stop at that place under this regulation.
[Underlining added]
- [2]Dr Mann was convicted of stopping on, relevantly a nature strip adjacent to a length of road in a built up area other than in the circumstances permitted by that regulation. He was fined $91.00, no conviction was recorded, and he was ordered to pay court costs of $92.90 and the respondent’s costs of $1250.
- [3]The appeal concerns construction of the definition of built-up area. That definition provides:
built-up area, in relation to a length of road, means an area in which either of the following is present for a distance of at least 500m or, if the length of road is shorter than 500m, for the whole road—
(a)buildings, not over 100m apart, on land next to the road;
(b)street lights not over 100m apart.
- [4]The issue which arises is whether, on the proper construction of that definition, for a road longer than 500m, a built-up area exists for a length of road wherever the conditions in (a) and/or (b) are present, or whether a built up area exists only where those conditions are present and are present for a distance of at least 500m.
- [5]For the reasons given below, I consider the latter construction to be correct.
- [6]Accordingly I order that the conviction, penalty and costs orders be set aside and I order that the complaint be dismissed.
Factual context
- [7]There was no material factual dispute at the trial. The relevant facts were these.
- [8]Mudjimba Esplanade at Mudjimba is some 1300m long. Initially it heads east/west towards the beach then bends south and runs parallel to the beach.
- [9]On 2 October 2016, the appellant’s car, along with a number of others, was parked on a mowed grass area immediately adjacent to Mudjimba Esplanade on the shorter east/west part of the road. This grassed area was located immediately opposite the Sand Dunes Hotel. Dr Mann was visiting his wife there. A little further down Mudjimba Esplanade on the same side of the road and towards the beach was a series of marked asphalt parking bays. Dr Mann was invited to park in the grassed area by hotel management in circumstances where there was no available spaces in the asphalt parking area.
- [10]It was not disputed before the learned Magistrate, nor was it disputed on the appeal, that the grassed area was a “nature strip” for the purposes of regulation 197(1). Nor was it disputed that there was no signage permitting parking in this area.
- [11]It is relevant to the disposition of this appeal to identify whether there was street lights or buildings on land next to the road which were not over 100m apart.
- [12]The evidence in that regard was as follows:
- (a)There was street lighting where Dr Mann parked, but the street lights were more than 100m apart;
- (b)There was buildings on land next to the road in the area in which Dr Mann parked, but they were limited to the buildings which comprised the Sand Dunes Hotel. While those buildings were less than 100m apart, they covered only a distance on Mudjimba Esplanade of some 110-130m in total. There was no evidence at trial of any further buildings on either side of the road beyond that point.
- (c)The photographs in evidence showed that the road continued for some distance after its turn south, with the beach on one side and bush land on the other, with neither lighting nor buildings evident.
- (d)The Council led no other evidence as to buildings adjacent to Mudjimba Esplanade. The parking officer in cross examination expressed the view that such evidence was not relevant. As will be seen, that view was incorrect. However, Dr Mann gave evidence that there were no other buildings on land next to Mudjimba Esplanade for a distance of 500m in the area where the Hotel was located.
- (a)
The parties’ contentions at trial
- [13]The appellant represented himself at trial. His contention was that if a road was longer than 500m, in order for there to be a length of road in a built up area as defined, there needed to be buildings present which were not more than 100m apart on land adjacent to the road, and that condition had to continue for at least a 500m length of the road.
- [14]As the Hotel buildings, though less than 100m apart, did not continue for 500m, he contended that no built-up area existed for a length of road which included the grassed area. That contention was maintained on this appeal.
- [15]The respondent contended that if a road was longer than 500m, in order for there to be a built-up area there needed to be buildings not more than 100m apart on land adjacent to the road. The respondent disagreed with the second requirement identified by the appellant: that is, that buildings less than 100m apart be present for at least 500m. Accordingly, the Council contended that Dr Mann committed the offence by parking on the nature strip opposite the Hotel, because Mudjimba Esplanade was more that 500m, and there was buildings less than 100m apart for the length of road where the Hotel was located.
The learned Magistrates’ reasoning
- [16]Her Honour found that Dr Mann had committed the offence by stopping in a nature strip adjacent to a length of road in a built-up area. She explained her construction of the definition of built-up area in the following manner:
…whilst the interpretation for which [Mr Mann] argues might be possible to derive from the wording. I am satisfied that the definition, when one looks at the first paragraph of it down to the dash before sub(a), refers to two separate lengths of road: one that exceeds 500 metres and one that is less than 500 metres. So that the 500 metres where it appears the first time in the definition of built up area actually refers – rather than to the frontage of the buildings, for example, refers to a length of road, so that the road would exceed 500 metres. Otherwise, there would be little sense in the second length of road to in that part of the definition.
The definition refers, in my view, to a distance of at least 500 metres applying – referring to the length of road. In the present case, it is a 1300 – approximately 1300 metres length of road, and the other alternative, which does not apply in the present case, is a length of road shorter than 500 metres. I am not satisfied that the definition requires that the length of road along which buildings must be present uninterrupted by distances of greater than 100 metres, must be 500 metres minimum. As I say, it simply would not make sense. The definition simply would not make sense otherwise. In the circumstances, I am not satisfied that the distance between the street lights is material. There is clearly a long – a length of road which has a length of approximately 1300 metres. There are buildings not over 100 metres part on land next to the road. Buildings plural.
[Underlining added]
Submissions on appeal
- [17]On appeal, the appellant relied again on the construction advanced at trial.
- [18]Mr Nicholson for the respondent relied on the construction adopted by her Honour but also advanced an additional contention dealt with below in paragraph [31] below.
- [19]He also sought to advance a third construction but could not do so with effect unless leave was granted to lead fresh evidence on this appeal. As will be seen from paragraph [35] onwards below, I refused leave.
Analysis of the construction issue
- [20]I respectfully disagree with her Honour’s approach to the proper construction of the definition. In my respectful view, the correct construction of the definition is revealed if it is read as follows:
A built up area in relation to a length of road means an area in which:
- (a)Buildings next to the road and not over 100m apart are present and/or street lights not over 100m apart are present; and
- (b)Such buildings or street lights are present for a distance of either;
- A 500m length or road; or
- If a road is less than 500m, for the whole road.
- [21]The following considerations support that construction.
- [22]First, it is consistent with the ordinary meaning disclosed by the definition read as a whole. The definition requires “either of the following” (being buildings or street lights) be “present for a distance of” one or other of the distances identified.
- [23]Second, I respectfully do not agree that such a construction does not make sense. The construction I have identified imposes two conditions on the identification of a built up area for a length of road: one being the presence of buildings and/or street lights with the necessary characteristics and the second being the continuation of those characteristics for a 500m length or the road or, the whole length of the road for any short road.
- [24]It is understandable that the regulation maker would have chosen to make both conditions necessary. Such an approach prevents small areas where lights and buildings are closely located being caught up as built up areas and attracting the offence creating provisions which are conditional on the existence of a built up area.
- [25]Similarly, the specific provision for roads shorter than 500m is readily understood. In adopting the minimum distance of 500m for a built up area, the drafter would have been aware that very short roads with the necessary conditions would fall outside the definition, even if they were located in areas which were otherwise built up areas. The imposition of the requirement that the conditions identified exist for the whole road if a short road is to be a length of road in a built up area is an understandable manner of dealing with that circumstance.
- [26]Third, the construction adopted by her Honour seems, as I understand it, to be that the definition should be read as follows:
- (a)built up area in relation to a length of road of at least 500m means a length of road in which either buildings or streets lights with the necessary characteristics are present; and
- (b)built up area in relation to a length of road which is less than 500m means an area in which either buildings or streets lights with the necessary characteristics are present for the whole length of the road.
- (a)
- [27]The effect of this construction would be that for a long road, even two buildings or street lamps within 100m would be sufficient to make that particular length of the road a built up area. On a shorter road, however, the whole road (up to 500m) must have buildings or streets lights with the necessary characteristics if a built up area is to exist. There seems to be no reason why the requirements for establishing a built up area should be potentially much more demanding for a short road than a long road. In my respectful view, this construction seems an unlikely intention of the regulation maker.
- [28]This case provides an example of the unlikely nature of the construction. Here it is uncontentious that buildings are present for a length of road of some 110-130m. Accordingly, on her Honour’s construction, Dr Mann stopped in a built up area for the length of road where that condition was met and the offence was committed. However, that only followed because Mudjimba Esplanade was more than 500m. If it had been a road of less than 500m, on her Honour’s constructions, no offence would have been committed, even though the physical were the same.
- [29]Fourth, the phrase “built up area” is used in numerous other provisions in the Regulations including:
- (a)Section 25(2) which provides:
- (a)
Speed limit elsewhere
(2)The default speed limit applying to a driver for a length of road is—
(a) for a road in a built-up area—50km/h; or
(b)for a road that is not in a built-up area—100km/h.
- (b)Section 77(1) which provides:
Giving way to buses
(1)A driver driving on a length of road in a built-up area where the speed limit applying to the driver is not more than 70km/h, in the left lane or left line of traffic, or in a bicycle lane on the far left side of the road, must give way to a bus in front of the driver if—
(a)the bus has stopped, or is moving slowly, at the far left side of the road or in a bus-stop bay; and
(b)the bus displays a give way to buses sign and the right direction indicator lights of the bus are operating; and
(c)the bus is about to enter or proceed in the lane or line of traffic in which the driver is driving.
Maximum penalty—20 penalty units.
- (c)Section 127, which provides:
Keeping a minimum distance between long vehicles
(1)The driver of a long vehicle must drive at least the required minimum distance behind another long vehicle travelling in front of the driver, unless the driver is—
(a)driving on—
(i)a multi-lane road; or
(ii)a length of road in a built-up area; or
(b)overtaking. Maximum penalty—20 penalty units.
(2)In this section—
long vehicle means a vehicle that, together with any load or projection, is 7.5m long, or longer.
required minimum distance means—
(a)for a road train—200m; or
(b)otherwise—60m.
- (d)Section 193(1) which provides:
Stopping on a crest or curve outside a built-up area
(1)A driver must not stop on or near a crest or curve on a length of road that is not in a built-up area unless—
(a)the driver’s vehicle is visible for 100m to drivers approaching the vehicle and travelling in the direction of travel of traffic on the same side of the road as the vehicle; or
(b)the driver—
(i)stops at a place on a length of road, or in an area, to which a parking control sign applies; and
(ii)is permitted to stop at that place under this regulation. Maximum penalty—20 penalty units.
- [30]The construction advanced by her Honour is apt to create built up areas over very short lengths of road on relatively long roads. This construction sits awkwardly with some of these other contexts. In my view, the construction advanced in paragraph [20] above allows the definition of built up area to operate effectively in these differing contexts.
- [31]Finally, Mr Nicholson advanced a further construction on appeal. He referred to the definition of “length” of road in the Regulations. It provides:
length of road includes-
(a)a marked lane or part of a marked land; and
(b)another part of a length of road.
- [32]Referring to this definition, he emphasised that a length of road includes “another part of a length of road”. He contended that based on this definition, the east/west section of Mudjimba Esplanade (which was less than 500m) could be identified as the relevant part of the length of road for the purposes of the definition. He further contended the photographic evidence at trial showed that the buildings were at less than 100m apart for the whole of that section of Mudjimba Esplanade and accordingly, it was a built up area for that shorter length of road.
- [33]Even accepting his factual propositions, I do not think that this contention is correct. It starts from the premise that the length of road is a particular part of Mudjimba Esplanade without identifying how that particular part of the road is to be identified as the relevant length for determining how the definition is to apply.
- [34]This approach in any event is not consistent with the construction of the section which I have identified in paragraph [20] above. Further, I do not agree that the definition of length of road is intended to make linear sub-sections of a length of road into lengths of road in their own right. That would be an odd provision: it would have the effect that a length of road included part of that length, which in turn would include part of that length and so on ad infinitum. In my view the definition communicates that a length of road includes the marked lanes and all other (constituent) parts of a particular length of the road.
Application to lead further evidence on appeal
- [35]Mr Nicholson sought leave to lead fresh evidence in the form of an aerial photograph of the full length of Mudjimba Esplanade and an accompanying affidavit of Mr Simpson of the Council. His evidence, relevantly, was that:
- (a)The photograph was taken in 2015 but remained an accurate depiction of Mudjimba Esplanade; and
- (b)Buildings shown on the north-south axis were continuous for a distance of 869m.
- [36]I note that the picture showed buildings running from the southern end of the road, and that the buildings ended some 300-400m south of the area where Dr Mann parked.
- [37]Section 223(2) Justices Act 1886 (Qld) permits this Court to give leave to adduce fresh evidence if the Court is satisfied there are special grounds for giving leave.
- [38]Mr Nicholson referred to Lambert v Queensland Police Service [2017] QDC 147 as articulating the relevant approach to whether special grounds are established. In that case, Judge Morzone QC adopted the approach of the Court of Appeal in Pavlovic v The Commissioner of Police [2006] QCA 134.
- [39]Pavlovic concerned an application for leave to appeal from a decision on an appeal to this Court under section 222 Justices Act. The learned District Court Judge had refused leave to the defendant to put fresh evidence before the Court on the appeal under section 223 Justices Act. It was contended to the Court of Appeal that the trial Judge had erred in reaching that conclusion. Dealing with that contention, the Court observed:
New evidence
[29]In the appeal to the District Court the applicant sought to tender new evidence. This evidence included Ms Prince's letter and what purport to be sworn statements from other persons said to have witnessed the accident. The statements were from B J Moore and R Moore. At the hearing on 14 October 2005, the learned District Court judge refused to grant leave to adduce additional evidence pursuant to s 223 of the Justices Act 1886 (Qld).
[30]In explaining why leave should not be granted, the learned District Court judge cited the "three main considerations" described by Gibbs CJ in Gallagher v The Queen as being relevant to a determination of "whether a miscarriage of justice has occurred because evidence now available was not led at the trial." It is clear that the reference in s 223(2) of the Justices Act to "special grounds" indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is "by way of rehearing on the evidence given in the proceedings before the justices". While Gallagher did not involve consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of "special grounds" which might be said to justify the grant of leave under s 223(2).
[Footnotes omitted]
- [40]The relevant passage from Gallagher referred to and applied by the Court was the following from the judgment of Gibbs CJ:
The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig (1933) 49 CLR 429 at 439, as follow:
“A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.”[1]
Perhaps no more elaborate statement of the position can usefully be made.
- [41]It is important to note that the criteria identified in Gallagher were not said by the Court of Appeal to exhaustively or exclusively define the matters relevant to the exercise of the discretion conferred under section 223 Justices Act. They merely provided a “useful guide”. The discretion must be considered in the circumstances of each particular case. Further, each of Gallagher, Lambert and Pavlovic concerned the situation where the defendant convicted at trial was seeking to lead fresh evidence on appeal. That is not this case. Here the prosecuting authority (in this case the Council) seeks to lead fresh evidence to sustain the conviction on a new basis if the conviction cannot be sustained on the evidentiary record at trial.
- [42]Mr Nicholson contended that the second and third criterion were made out in this case. As to the first criterion, Mr Nicholson frankly conceded that the evidence could with reasonable diligence have been produced at trial, but relied on the observations of Justice Gibbs to contend that the importance of the evidence justified its reception in any event.
- [43]At trial I declined to give leave to lead the fresh evidence. My reasons for doing so are as follows.
- [44]First, it tells strongly against giving leave that the evidence could have been produced at trial. That is of particular significance where the party seeking leave is the prosecuting authority. The caveat introduced by Gibbs J in Gallagher concerned the situation where the fresh evidence is very strongly supportive of a defendant who is appealing conviction. I do not think that caveat apt to apply to the prosecuting authority introducing fresh evidence on the defendant’s appeal against conviction which is designed to sustain the conviction. A fortiori where that evidence (as we shall see) is directed to a proposition of construction of the offence creating provision not advanced at the trial. The defendant was entitled to have the whole case against him brought forward at the trial. I would refuse leave on this basis alone.
- [45]Second, I do not consider that the fresh evidence would have an important influence on the outcome of the appeal. Its only relevance was to support a further construction of the statute which Mr Nicholson sought to advance for the first time on the appeal. He contended that on the proper construction of the definition, a built up area existed over the whole length of the road where a road was more than 500m and had buildings not over 100m apart for a distance of 500m somewhere over the length of the road. That is, the whole road comprised a built up area if the conditions for a built up area were met somewhere along the road.
- [46]I do not consider that construction to be correct. It is inconsistent with the construction identified above in these reasons. It would also result in the odd outcome that a road which might be rural over a distance of some kilometers, but with a small hamlet of houses over a distance of 500m, would be a built up area for the whole length of that road.
- [47]Accordingly, the fresh evidence would not have led to a different outcome on the appeal.
Conclusion
- [48]For the above reasons I make the following orders:
- (a)The appeal against conviction is allowed;
- (b)The conviction be set aside and the complaint be dismissed;
- (c)The orders for costs made at trial be set aside;
- (d)The Council pay Dr Mann’s costs of the trial and of this appeal on a standard basis.
- (a)
Footnotes
[1] Gallagher v The Queen (1986) 160 CLR 392, 395-396.