Thomas v The Commissioner of Police
[2018] QDC 98
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- Unreported Judgment
- Thomas v The Commissioner of Police[2018] QDC 98
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Thomas v The Commissioner of Police[2018] QDC 98
Thomas v The Commissioner of Police[2018] QDC 98
DISTRICT COURT OF QUEENSLAND
CITATION: | Thomas v The Commissioner of Police [2018] QDC 98 |
PARTIES: | GENE BRENDAN THOMAS (Appellant) v THE COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | D263/17 |
DIVISION: | Appellate |
PROCEEDING: | Application for extension of time within which to file a notice of appeal |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 6 June 2018 |
DELIVERED AT: | Southport |
HEARING DATE: | 11 May 2018 |
JUDGE: | Kent QC DCJ |
ORDER: |
|
CATCHWORDS: | MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – NOTICE OF APPEAL – where the appellant seeks an extension of time for filing a notice of appeal – where the appellant was convicted for an offence of disobeying the speed limit – where the Magistrate rejected the appellant’s claims that he was not criminally responsible pursuant to ss 25 and 31 of the Criminal Code 1899 – where success on appeal is unlikely – whether an extension of time within which to appeal should be granted TRAFFIC LAW – OFFENCES – PARTICULAR OFFENCES – EXCEEDING PRESCRIBED SPEED LIMITS – DEFENCES – where the appellant seeks an extension of time for filing a notice of appeal – where the appellant was convicted for an offence of disobeying the speed limit – where the appellant claimed that he was not criminally responsible pursuant to ss 25 and 31 of the Criminal Code 1899 – where the Magistrate found that the exculpatory provisions of the code had been excluded by the prosecution beyond a reasonable doubt – whether the Magistrate’s order is the result of some legal, factual or discretionary error Justices Act 1886 (Qld) Section 223(1) Criminal Code 1889, Sections 25, 31 Teelow v Commissioner of Police [2009] 2 Qd R 489 Fox v Percy (2003) 214 CLR 118 Rowe v Kemper (2009) 1 Qd R 247 White v Commissioner of Police (2014) QCA 121 McDonald v Queensland Police Service (2017) QCA 255 Strudwick v Russell [1989] CCA 152 |
COUNSEL: | Appellant was self-represented K Thomas (QPS) for the respondent |
SOLICITORS: | Appellant was self-represented Office of the Director of Public Prosecutions for the respondent |
- [1]In this matter the applicant/appellant seeks an extension of time for filing a notice of appeal from a determination of the Magistrates Court at Southport. If successful, the substantive appeal is against a conviction for an offence of disobeying the speed limit which occurred on 14 May 2016. The conviction occurred on 17 July 2017.
- [2]The question of the extension of time is bound up with the merits of the appeal proper, and thus the merits of the appeal should be examined in considering the extension application; see e.g. R v Tait.[1]
The procedure on appeal
- [3]The appeal is by way of rehearing on the evidence given on the proceeding before the Magistrate.[2]The question on such an appeal may be posed in variations of language, however one helpful formulation is to consider whether, having regard to all the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[3]The appeal requires this court to conduct a real review of the trial, and the Magistrate’s reasons and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.[4]
- [4]An appeal of this kind is by way of rehearing on the original evidence in the proceeding, however leave may be given to adduce fresh, additional or substituted evidence if there are special grounds for doing so.[5]
The proceedings below
- [5]The appellant was charged with disobeying the speed limit. He was the subject of an infringement notice produced by a photographic detection device on the Pacific Motorway. The trial was heard in the Magistrates Court at Southport on 17 July 2017. The applicant was self-represented. He gave evidence during the hearing which raised the operations of s 25 and s 31 of the Criminal Code 1899. The Magistrate found that the prosecution had excluded the operation of either section and thus the applicant was not excused from criminal responsibility for his admitted speeding.
Factual background
- [6]The prosecution case was that on 14 May 2016 the applicant was driving his Mercedes Benz vehicle along the Pacific Motorway at Gaven at a speed of 131 kilometres per hour where the speed limit was 110 kilometres per hour. These basic propositions were established by the evidence, and indeed are not significantly in contest.
- [7]During cross-examination the applicant accepted that he was driving his vehicle and was definitely over the 120 kilometre mark at one stage.[6]The applicant admitted that he exceeded the speed limit but said that he was trying to avoid a road rage incident. In essence he said that he was driving with his two children in the car. The incident is said to have commenced with a white Commodore with two males tailgating the applicant, moving beside him and the occupants making threatening gestures.[7]The Commodore subsequently moved in front of the applicant’s vehicle and braked suddenly, requiring the applicant to brake hard to avoid a collision. He slowed down to approximately 80 kilometres per hour.[8]The applicant said that the Commodore then “took off”.[9]
- [8]After the Commodore had sped off, the applicant moved to the far left lane of the highway and elected to accelerate and speed away from the Commodore. It was at this point that the applicant was detected by the photographic detection device. The applicant’s version was that he took what he thought to be necessary evasive action to protect his children who were in the car.[10]The applicant exited from the freeway at the next opportunity, drove to an underpass and waited. He did not attempt to contact the police to report the event.
- [9]The applicant argues that his response was reasonable in attempting to evade the road rage incident. It is further said that it fell in the context of previous domestic violence at the hands of his ex-partner, thus he was concerned that the two males involved in the road rage incident may have been acting as the agents of his ex-partner.
- [10]Accordingly, consideration was given to ss 25 and 31 of the Criminal Code.
S 25 provides:
25 Extraordinary emergencies
Subject to the express provisions of this Code relating to acts done upon compulsion or provocation or in self-defence, a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.
In R v Webb[11] this was analysed as an objective test examining expectations of a competent and careful driver. A similar approach was followed in Strudwick v Russell.[12]
S 31 provides insofar as is relevant:
31 Justification and excuse—compulsion
(1)A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—
(a)in execution of the law;
(b)in obedience to the order of a competent authority which he or she is bound by law to obey, unless the order is manifestly unlawful;
(c)when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;
(d)when—
(i)the person does or omits to do the act in order to save himself or herself or another person, or his or her property or the property of another person, from serious harm or detriment threatened to be inflicted by some person in a position to carry out the threat; and
(ii)the person doing the act or making the omission reasonably believes he or she or the other person is unable otherwise to escape the carrying out of the threat; and
(iii)doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.
The decision
- [11]The Magistrate rejected the operation of these provisions and made the following observations in his decision:
“But for the purpose, as I say, of deciding whether sections 25 and 31 operate, I will take the evidence at its highest and that is that there were persons in a vehicle near the defendant who were engaged in a road rage incident directed towards the defendant that involved aggressive driving conduct towards him and aggressive gestures but fell short of any actual harm being caused to the defendant by way of contact with his vehicle.
And I view it in – and I have regard to the operation of 25 and 31, having regard to the sequence of events as discerned from the defendant’s evidence, that is that this incident commenced with a tailgating incident, progressed to the offending vehicle being to the side of the defendant, proceeded with the offending vehicle taking a position in front of the defendant’s and braking hard, causing the defendant to brake and then with the offending vehicle rapidly increasing its acceleration.
The defendant than accelerating himself and exiting the highway at a point where when he says the offending vehicle was unable to proceed closer to him because it was effectively locked in by the other traffic. So section 25, to operate, requires me, as I say, to consider that information at its highest in terms of the threat that might have been posed to the defendant. In that regard I am to consider whether 24 operates in conjunction with 25, that is whether the existence of the emergency could be factual or the product of an honest and reasonable but mistaken belief.
I am also mindful of the decisions of the relevant courts considering the operation of section 25. The conduct of the driver has to be viewed in light of what might have been expected in the case of a competent and careful driver or a competent and experienced driver. The Queensland Court of Criminal Appeal in Strudwick v Russell, when considering both section 25 and section 31, described the test to be applied as that of an ordinary reasonable man and that the defendant would only be entitled to act as a reasonable man would in order to avoid the dangerous circumstance.
Now, in the application of those tests to the operation of, in particular, section 25, my view of the facts is that there were options – there were a number of options available to the defendant objectively. The defendant chose to accelerate to a speed which he accepted in cross-examination was, of itself, dangerous in the circumstances. The other options available to him, objectively, were once the offending vehicle had accelerated away to proceed at the lower speed, the defendant said he had braked heavily himself to a speed of 80. A clear option available to him and available to a reasonable person using reasonable self-control in those, no doubt, distressing circumstances would have been to proceed at the lower speed, activate hazard lights, move to the left, slow down even further, potentially even stop on the shoulder where vehicles stop for various purposes including breakdowns and simply wait.
The Pacific Motorway leaves no capacity for a vehicle easily to return once it advanced. The opportunities for return would have included a hasty move to the side by the offending vehicle and stopping. Whether that could have been affected within a distance for a person to leave a vehicle and return to the defendant’s vehicle is something that can only be speculated about but had those circumstances arisen, an opportunity to move would, again, have presented itself. Other opportunities for an offending vehicle to return to the defendant in those circumstances would have necessitated an exit and some prolonged back tracking by service roads to re-enter the highway. The opportunity, it seems to me, of the road rage would have been completely dissipated by taking that sort of action.”
- [12]The Magistrate also considered the appropriateness of simply slowing to separate the defendants’ vehicle from the aggressor.
- [13]Thus the Magistrate found that accelerating to 130 kilometres per hour was not a reasonable option. It raised inherent dangers and was not reasonably open in the sense of the operation of s 25 to excuse the applicant of criminal responsibilities.
- [14]The Magistrate found similarly that any defence under s 31 of the Code failed on the basis of the relevant act not having been reasonably necessary to resist actual or unlawful violence threatened. Thus, the Magistrate found that both potential exculpatory provisions of the code had been excluded by the prosecution beyond a reasonable doubt.
- [15]During his cross-examination, the applicant conceded that it was possible that he could have pulled into the left lane and the other vehicle would not have been able to change into the far left lane and stop nearby.[13]He also conceded that he could have proceeded within the speed limit and not responded at all to the other vehicle which had not made physical contact with his vehicle.[14]
Discussion
- [16]The applicant, on his version, no doubt found himself in a stressful situation without having the time to make leisurely and considered decisions in response to his circumstances. I accept that momentary decisions made in the “agony of the moment” (i.e. the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of the circumstances, would not have behaved; see Leishman v Thomas[15]) are a very different proposition from the slow and careful analysis such actions are subjected to retrospectively in a court hearing. However in my view, the applicant cannot point to an identifiable error such as to enliven the appellate powers of the court. The test outlined in Teelow v Commissioner of Police[16] is as follows:
“It is a normal attribute of an appeal by way of rehearing that ‘the powers of the Appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Appellate Court, the order the subject of the appeal is the result of some legal, factual or discretionary error…”
- [17]The respondent submits, in my view correctly, that the applicant has failed to point to such an error. Even giving the applicant the benefit of the proposition that he was making decisions in an unexpected situation under some pressure in a brief time and with the responsibility of his children in the car (indeed their presence was of course a two edged sword for the applicant; speeding with children in the car is prima facie less reasonable than when only the driver is exposed to danger), it was so obvious a solution to simply slow down and allow the other vehicle to proceed beyond a distance where it could present any danger that the alternative of accelerating to more than 20 kilometres above the speed limit in order to exit the freeway simply does not fall within the category of reasonable action as required by either s 25 or s 31.
- [18]There was also an attempt by the applicant to adduce further “fresh” evidence which related to other unconnected incidents of road rage. This was properly resisted by the respondent in accordance with the principles outlined by Gibbs CJ in Gallagher v The Queen.[17]I reject its admission.
- [19]The delay was 38 days, a substantial period although the respondent does not point to specific prejudice therefrom. Importantly, however, in my conclusion for the reasons above an appeal would have no prospect of success. Accordingly, the application for an extension of time within which to appeal is dismissed.
Footnotes
[1](1998) 2 Qd R 667 at 668.
[2]Justices Act 1886 (Qld) section 223(1).
[3]See Teelow v Commissioner of Police (2009) 2 Qd R 489 at 493.
[4]See Fox v Percy (2003) 214 CLR 118 at [25]; Rowe v Kemper (2009) 1 Qd R 247 at [3]; White v Commissioner of Police (2014) QCA 121 at [6]; McDonald v Queensland Police Service (2017) QCA 255 at [47].
[5]Section 223(1)(2).
[6]Transcript pages 1-19, lines 17 to 28.
[7]Transcript pages 1-10, lines 33 to 35.
[8]Transcript pages 1-24, line 39 to 40.
[9]Transcript pages 1 -24, line 42 to 43.
[10]Transcript pages 1-16, lines 16 to 18.
[11](1986) 2 Qd R 446 at 450.
[12](1989) 9 MVR 15.
[13]Pages 1-25, line 27 to 37.
[14]T1-16, lines 30 to 40.
[15](1957) 75 WN(NSW) 173 at 175 per Street CJ.
[16][2009] 2 Qd R 489 at 493.
[17](1986) 160 CLR 392 at 395-396.