Mizikovsky v QPS[2018] QDC 249

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the decision of a Magistrate at Pine Rivers on the 20^th of March 2018.  On that occasion, the Magistrate convicted the appellant of failing to keep left of a dividing line. 

2. [2]
   In order to succeed in such an appeal, it is usually necessary for the appellant to establish there is error. Also an appeal of this nature is by way of re-hearing and I need to consider the evidence placed before the Magistrate in deciding the matter.

3. [3]
   The appellant was charged with the following charge:

“That on the 4^th day of December 2016 at Mount Nebo in the Magistrates Court district of Caboolture in the State of Queensland, the appellant being the driver of a vehicle, namely a motorbike, on a road namely Mount Nebo Road, Mount Nebo, the said road with a dividing line, failed to drive to the left of the dividing line on the said road and it is averred that the said motorbike is a vehicle as defined in section 15 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 and it is averred that the said Mount Nebo Road, Mount Nebo is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 4^th day of December 2016, the said dividing line is an official traffic sign as defined in schedule 4 of the Transport Operations (Road Use Management Act) 1995.”

4. [4]
   Now, the trial proceeded before the Magistrate. A police officer, Sergeant Sweeney, was called to give evidence. He was stationary on his motorbike on the side of the road. He said he saw the appellant and a companion driving their motorbikes past him. He then followed them and videotaped the journey, exhibit 1. I have seen that in court today. He gave evidence that before a left hand sweeping bend, the appellant’s motorcycle went onto the incorrect side of the road for about two seconds - 12 metres as I understand it. He then went back on to the correct side of the road. The police officer and the appellant’s partner did not go onto the wrong side of the road. He then followed the appellant for a distance. He said the appellant was very close to the centre line and indeed crossed the line on another occasion.

5. [5]
   The appellant’s wheel was, at times, on the centre line, with the pannier over on the wrong side of the road.

6. [6]
   The officer activated his lights and pulled the appellant over. There was a conversation between the two at the side of the road which was recorded. The appellant was confronted with the allegation of having gone on to the wrong side of the road and the appellant said he didn’t think he was. However this cannot be said to be an admission because it is common ground that the police officer mistakenly put it was a right hand bend. This does not relate to the present offence.

7. [7]
   As to the evidence of the appellant being close to the line and/or being on the wrong side of the road on another uncharged occasion, that might be relevant to the prosecution case ultimately, but it might also be relevant to the defence, so I’ll leave that for a Magistrate to make decisions on that issue at the new trial. I observe the Magistrate did not direct himself as to the use to be made of this evidence.

8. [8]
   The appellant gave evidence alleging that because of the size and type of the motorcycle, there was a drifting of the bike on to the wrong side of the road. However he did not distinctly admit being on the wrong side of the road. He went back on a later occasion and took some photographs which show damage on the side of Mount Nebo Road at other locations which led him to ride closer to the centre line. 

9. [9]
   He also called an expert engineer who gave evidence that the signage at this corner was not in accordance with the Queensland manual, it was a sharp bend and there was 45 metres of vision on the left side of the road, but an extra seven metres to the right.

10. [10]
    Unfortunately the Magistrate appears to have been a motorbike rider and cross-examined the appellant about his evidence concerning the drift of the motorcycle. It is unfortunate the Magistrate engaged in cross-examination. It is important for judicial officers to not enter the arena^[1]. In my view the Magistrate did on this occasion.

11. [11]
    Another unfortunate aspect about this case is the Magistrate relied on his own judicial notice as to his experience in riding motor cycles in rejecting the appellant’s evidence and ultimately finding him guilty.

12. [12]
    Mr Ryan submits that this is a clear error of law. The Crown submits that that is only part of the decision, but candidly accepts it can’t take its submission much further than that.

13. [13]
    In Holland v Jones (1917) 23 CLR 149 at page 153, Justice Isaac said:

“The only guiding principle, apart from statute, as to judicial notice which emerges from the various recorded cases, appears to be that whenever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it.  The court notices it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation is it considers reliable and necessary in order to eliminate any reasonable doubt.”

And further:

“The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it.  This excludes from the operation of judicial notice what are not general particular facts.”

14. [14]
    It is my respectful opinion that knowledge of the operation of a motorcycle in the present circumstances is not a general fact, but a particular fact and does not fall within the class of evidence or matter which is permissible as judicial notice.

15. [15]
    In those circumstances, I find there has been a material error which effected the reasons in this case and indeed the conduct of the trial. In those circumstances, it is appropriate to allow the appeal on that ground without more.

16. [16]
    The next issue is as to as to whether I can determine the appeal on the evidence. Initially, both counsel agreed that I should, but Mr Ryan, on reflection, realised there are significant limitations in me doing that because it seems to me that the credibility of both the police officer and the appellant are called into question in this case.

17. [17]
    In this case section 24 of the Criminal Code was raised.

18. [18]
    Under section 342 of the Transport Operation (Road Use Management – Road Rules) Regulation 2009 (Q), section 24 is arguably open. It is clear the Magistrate failed to consider that defence. The honesty and reasonableness of the appellant’s belief will be very relevant in this trial. Demeanour may be relevant.  I can’t assess that here.  I also have significant difficulties assessing the appellant’s credit because in the transcript, there was the cross-examination by the Magistrate about his judicial knowledge of motorcycles which makes it difficult to ignore and a trial should proceed without that being on the transcript. 

19. [19]
    Additionally, there is a defence raised under section 139 (2) of the Road Rules concerning obstruction.  That needs to be considered in light of the credibility of the witnesses and their demeanour.  I can’t assess that just on the transcript

20. [20]
    This is a case which needs to be remitted to the Magistrates Court to be heard afresh by a different Magistrate.

21. [21]
    For the reasons I have given, I make the following orders:

1. The appeal is allowed.
2. The conviction is set aside.
3. I remit the matter to the Magistrates Court at Brisbane for a new trial before a different magistrate.

…

22. [22]
    I order the respondent pay the appellant’s costs fixed in the sum of $1800 within 28 days.