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Dart v Queensland Police Service[2022] QDC 93

Dart v Queensland Police Service[2022] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

Dart v Queensland Police Service [2022] QDC 93.

PARTIES:

Frederick William Dart

(Appellant)

v

Queensland Police Service

(Respondent)

FILE NO:

118 of 2021

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

3 June 2022

DELIVERED AT:

Townsville

HEARING DATE:

23rd February 2022

JUDGE:

Coker DCJ

ORDER:

  1. That the appeal be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – S 222 OF THE JUSTICES ACT 1886 – where the appellant was convicted after trial of breaching Regulation 20 of the Transport Operations (Road Use Management – Road Rules) Regulations 2009 (Qld) – whether defences arising pursuant to s 24, 25 & 31 of the Criminal Code 1899 (Qld) were available.

LEGISLATION:

Justices Act 1886 (Qld), s 222.

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 20.

Criminal Code Act 1899 (Qld), s 24, 25, 31.

Transport Operations (Road Use Management) Act 1995 (Qld), s 120(2), 120(2A), 123C(1), 123C(3).

State Penalties Enforcement Act 1999 (Qld) s 157(2)(a), 157(2)(f), 157(2)(j).

CASES:

LIB v Queensland Police Service [2018] QDC 259 (cited)

Davies v Commissioner of Police [2018] QDC 201 (cited)

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 (cited)

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (cited)

McDonald v Queensland Police Service [2017] QCA 255 (cited)

Berbic v Steger [2005] QDC 294

R v Webb [1986] 2 Qd R 446

Dudley v Ballantyne [1998] WASCA 198

Cantery v Stewart Full Court Western Australia, 14 December 1976

Dunjey v Cross [2002] WASCA 14

COUNSEL:

F. Dart for the Appellant

G. Ollason for the Respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the Respondent

Introduction

  1. [1]
    On the 24th July 2021 Frederick William Dart, hereinafter referred to as the Appellant, filed a Notice of Appeal in this Court pursuant to Section 222 of the Justices Act 1886 (Qld).
  2. [2]
    Following a hearing in the Magistrates Court on 14th April 2021, His Honour Magistrate Taylor delivered reasons on the 1st June 2021 finding the Appellant guilty of exceeding the speed limit in the speed zone by more than 40kph contrary to Section 20 of Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld). Interestingly, the learned Magistrate did not sentence at that time, but rather on the 27th July 2021 imposed a fine of $1500 referred to SPER and disqualified the Appellant from holding or obtaining a drivers licence from a period of 6 months. No conviction was recorded.
  3. [3]
    As I have indicated, the appeal was lodged before any penalty was imposed and I confirmed with the Appellant that this was not an issue as his appeal related to the conviction and not to sentence imposed. The grounds of appeal are as follows:
  1. The Honourable Magistrate erred when he failed to find that, the Complainant had a defence, or defences, within the meaning and interpretation of sections 24, and/or 25 and/or 31 of the Queensland Criminal Code Act 1899 (the Act), and having raised those defences, the onus fell onto the prosecution to negative any, or all, of the defences, and that, the prosecution failed to offer a substantive argument, or an argument at all, that could negative any, or all, of the Complainant’s defences, and or in the alternative,
  2. The Honourable Magistrate erred when, the Complainant having claimed a defence under Section 25 of the Act, he failed to give proper consideration to the meaning and interpretation of the section and the relevant Authorities when deliberating the Complainant’s offending, in that the section had also been said that it involves circumstances where there was a likely danger to life or property, of which the complainant claimed to have had an honest and reasonable belief, that such was the case at time of the offending, and, or in the further alternative,
  3. The Honourable Magistrate erred when, he failed to properly consider that, pursuant to section 25 of the Act, 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 and, or in the further alternative,
  4. The Honourable Magistrate erred when the Complainant having claimed a defence under Section 31 of the Act, he failed to give proper consideration to the meaning and interpretation of the section, and the relevant Authorities, when deliberating the Complainant’s offending and that, the consequences relevant to the offending would have inflicted irreparable evil upon the accused, or upon others whom he was bound to protect, and that the accused had the honest belief on reasonable grounds that he was placed in a situation of imminent peril and that the acts done to avoid the imminent peril were not out of proportion to the peril to be avoided, and, or in the further alternative,
  5. The Honourable Magistrate erred when, the Complainant having claimed a defence under Section 24 of the Act, he failed to give proper consideration to the meaning and interpretation of the section, and the relevant Authorities, when deliberating the Complainant’s offending and, that the complainant had an honest and reasonable, but mistaken, belief as to the existence of any state of things and was not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist, and, or in the further alternative,
  6. The Honourable Magistrate erred when he failed to give proper consideration to the circumstances of the Complainant, relevant to the offence and pursuant to the aforementioned sections of the Act, when considering whether the Complainant’s actions were lawful, and reasonable under the circumstances of a reasonable person in the circumstances of the defendant, and whether what was done was beyond the range of activities that you might expect as a reaction in the circumstances of an ordinary person.
  1. [4]
    The background to the charge is uncontentious, at least insofar as what is said to constitute the offending. The Appellant drove his motor vehicle on Riverway Drive in Condon at a speed of 125kph in a 70kph zone and was photographed by a speed detection device. An infringement notice was subsequently issued.
  2. [5]
    As is clear from the grounds of appeal already detailed, the Appellant relies upon Sections 24, 25 and 31 of the Criminal Code Act 1899 (Qld). Section 25 raises a defence that the offence was committed under circumstances of sudden or extreme emergency. S. 25 is in these terms:

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.

  1. [6]
    S. 31 provides a defence in circumstances where it is contended that the offence was committed in execution of the law. S. 31 is in these terms:

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—

  1. (a)
    in execution of the law;
  1. (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;
  1. (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;
  1. (d)
    when—
  1. (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
  1. (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
  1. (iii)
    doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.
  1. (2)
    However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.
  1. (3)
    Whether an order is or is not manifestly unlawful is a question of law.
  1. [7]
    S. 24 provides a defence in a situation where the offence was committed under an honest and reasonable but mistaken belief that the actions constituting the offending was either under a circumstance of extreme emergency or excused by law. S. 24 is in these terms:

Mistake of fact

  1. (1)
    A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
  1. (2)
    The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
  1. [8]
    The appeal is brought pursuant to the provisions of S. 222 of the Justices Act 1896 (Qld). S. 222 as is relevant here, is in these terms:

Appeal to a single judge

  1. (1)
    If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.
  1. [9]
    The nature of the appeal was helpfully outlined in LIB v Queensland Police Service [2018] QDC 259, a decision of his Honour Judge Kent QC, where his Honour said the following:

11.  Pursuant to section 223(1) of the Justices Act 1986 (Qld), an appeal under section 222 is by way of rehearing of the original evidence given in the proceeding at first instance before the magistrate.  The nature of this process means that the Court “must, of necessity, observe the ‘natural limitations’ that exist” in such a procedure, such as the handicaps in evaluating witness credibility and not having heard, or been directed to, the whole of the evidence.

12.  It is necessary, in order for the appeal to succeed, that a legal, factual or discretionary error be identified.  The position was recently helpfully summarised in Davies v Commissioner of Police as follows:

“[16] An appeal by way of rehearing involves the appellate Court conducting a ‘real review’ of the evidence given at the trial.  In Robinson Helicopter Company Inc v McDermott, the High Court said: 

‘A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the Judge has erred in fact or law.  If the Court of Appeal concludes that the Judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.’

[17] In Fox v Percy the plurality of Gleeson CJ, Gummow and Kirby JJ said:

‘Within the constraints marked out by the nature of the appellate process, the appellate Court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons.  Appellate Courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.  In Warren v Coombes, the majority of this Court reiterated the rule that:

“[I]n general an appellate Court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge.  In deciding what is the proper inference to be drawn, the appellate Court will  give respect and weight to the conclusion of the trial Judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

As this Court there said, that approach was ‘not only sound in law, but beneficial in … operation’.

[18] In McDonald v Queensland Police Service, Bowskill J said that:

‘It is well established that, on an appeal under section 222 by way of rehearing, the District Court is required 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.  Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.’

[19] In conducting a review of the evidence, any advantage the magistrate had in seeing and hearing the witness should be considered.”

13.  Thus what is required is a “real review” as to whether there is error as described.

  1. [10]
    As such, the appeal is by way of rehearing of the original evidence before the Magistrate with the court, having reheard the matter able to confirm, set aside or vary the order of the Magistrate.
  2. [11]
    In reviewing the process followed by the learned Magistrate it is clear that he outlined numerous matters of procedure to the Appellant and that the Appellant clearly understood those matters and the process to be followed. Thereafter the Prosecutor provided a brief outline of the case, noting that from the Prosecution’s perspective it would be heard on the papers.
  3. [12]
    Following the opening the Prosecutor tendered various documents all of which were tendered in bulk at the conclusion of them being identified. These included:
  1. A certificate pursuant to S. 120(2) of the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM) and photograph;
  2. A close up of the vehicle number plate;
  3. A further photograph of the Appellant’s vehicle;
  4. A certificate pursuant to s. 123C(3) of TORUM;
  5. A certificate pursuant to s. 120(2A) of TORUM;
  6. A certificate pursuant to s. 157(2)(f) of the State Penalties Enforcement Act 1999 (Qld);
  7. A certificate pursuant to S. 123C(1) schedule 1, item 10 of TORUM;
  8. A certificate pursuant to S. 157(2)(a) of the State Penalties Enforcement Act 1999 (Qld);
  9. An infringement notice Number 2087250539; and,
  10. A certificate pursuant to S. 157(2)(j) of the State Penalties Enforcement Act 1999 (Qld).
  1. [13]
    All such documents were tendered by the Prosecution without objection and the Prosecution then closed its case relying upon that documentation.
  2. [14]
    Thereafter the Appellant, when called upon by the Magistrate, indicated an intention to call witnesses and to give evidence himself. Those additional witnesses called by the Appellant included McKenzie Cornford, Hannah Janice Cornford, Shirley Dart and Tanya Cornford.
  3. [15]
    The Appellant gave evidence regarding his antecedents generally and then moved on to describe the circumstances that arose in the early hours of the 18th April 2020. The Respondent has through Counsel set out briefly the evidence of the Appellant’s witnesses in a summary and having read the transcripts I adopt it as an accurate recitation of the evidence of the Appellant and his witnesses.

3.5.1  That on or about 18 April 2020 somebody entered the home of the Cornford’s where they took the keys of the car belonging to Hannah Cornford.

3.5.2 The Appellant’s partner, Tanya Cornford, contacted him at approximately 2:30am to advise what had occurred and asked him to attend her house.

3.5.3 As the Appellant travelled to Ms Cornford’s house, he came across a car being driven recklessly that looked similar to Hannah Cornford’s car.

3.5.4 The Appellant followed the car to confirm the numberplate. The Appellant confirmed it was the stolen car so continued to follow it. At the same time the Appellant used his Bluetooth device to contact police.

3.5.5 The Appellant followed the stolen car whilst on the phone to police with the intention of providing updates as to the location of the stolen car in order to apprehend the offenders. As he was doing so, the stolen car went through a red light at speed. The Appellant saw a red-light camera flash. The Appellant continued to follow the stolen car at which point the light had turned green. At that point the Appellant committed the offence subject of the appeal being the Appellant drove 55 kilometres per hours over the speed limit.

3.5.6 The Appellant stopped pursuing the stolen car at the point in which he believed an undercover police car had begun pursuing it and the 000 phone operator told him to “stand down”.

3.5.7 Prior to the offence subject of the appeal, Hannah Cornford had already had a car stolen from her only approximately 18 months prior. The car was unable to be salvaged and the offenders were not apprehended. The Appellant was aware of this.

3.5.8 Ms Cornford had contacted police and reported the car as having been stolen prior to contacting the Appellant.

3.5.9 Restrictions were in place at the time of the offence during to Covid-19. As a result, roads were seemingly not as busy as usual.

  1. [16]
    For completeness, I note that in the Appellant’s background information he also noted the history of Criminality in the area of Tanya Cornford’s residence, including break-ins and the theft of vehicles from their home. This provided some additional perspective into the matters that were said to be at play in the Appellant’s mind at the time of the offending.
  2. [17]
    As the Appellant submitted, the defences were grounded upon this factual background which he submitted were highly unusual.
  3. [18]
    This position was acknowledged by the learned Magistrate. He noted specifically in his decision that the only evidence of the offending itself was contained in the Exhibits 1-10 to which I have referred. His Honour accepted that evidence and therefore found that the elements of the offence had been made out by the Prosecution. He then went on to address the defences raised and noted that they could be summarised as an offence committed under circumstances of sudden or extreme emergency, secondly as an offence committed in the execution of the law and thirdly under a mistaken belief that the Defendant (the Appellant before me) was acting under the circumstances of extraordinary emergency and/or excuse of the law.
  4. [19]
    The learned Magistrate, in the same way that I am required, considered all of the evidence that had been presented and then sought to consider it in light of the defences relied upon. In his reasons for the decision the learned Magistrate noted the arguments raised where he said:

In this respect, and respect to the other defences raised, I have had regard to the submissions from the Defendant both written and oral and the cases he tendered. Particular in respect of this defence, regard is had to the decision oh his Honour Judge McGill in Berbic v Steger [2005] QDC 294. Paragraph 14 of that decision Judge McGill notes the section 25 raised two issues, whether there is relevantly an extraordinary emergency, and if so, whether an ordinary person possessing ordinary power of self-control could not reasonable be expected to act other than as the Defendant did. It has also been said that the emergency could be factual or the product of an honest and reasonable but mistaken belief.

It is – that’s from R v Webb [1986] 2 Qd R 446 449. Or that the emergency could involve circumstances where there was a likely danger to life or property. Here references are had to the Western Australian authorities. There’s Dudley v Ballantyne [1998] Western Australian Supreme Court bear 198 – WASCA 198, Cantery v Stewart Full Court Western Australian decision of 14 December 1976 and Dunjey v Cross [2002] WASCA 14. I accept, after reviewing those authorities, that emergency could relate to only danger to life but danger to property. It is further noted in paragraph 17 by Judge McGill that:

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 not have been excluded.

There is also reference to commentary in the bench book which is along similar lines which I also have regard. There are further appropriate comments by Judge McGill in that decision at paragraph 30 as follows:

The ordinary person means of course an ordinary person in the position of the Accused –

  and goes on to say:

And indeed one who had not only the power of self-control of the ordinary person, but also the fortitude and sound judgment of the ordinary person, with the degree of respect for the law that that person would have.

Further, in paragraph 36, Judge McGill acknowledges the fact a threat to property can be sufficient to give rise to an extraordinary emergency, saying further:

This come back to the question of proportionality and reasonableness. The seriousness of the emergency must be weighed against the seriousness of the criminal conduct in question by reference to the standard of the ordinary person with ordinary powers of self-control.

  1. [20]
    Having considered these comments by Judge McGill, His Honour looked to the facts and how they melded with the guidance provided. He spoke of the need for proportionality and found, as I would, that the action of travelling at the speed that the Appellant did is “excessive and disproportionate to the purported emergency”.
  2. [21]
    His Honour also considered whether there was reasonableness in the Appellant’s actions and came to the view/finding that such actions are not those which an ordinary person would do. The Appellant argues however that there must be an appreciation of his particular circumstances and state of mind, in order to consider what might be proportionate and reasonable.
  3. [22]
    The Appellant in his outline detailed matters that he submitted needed to be considered and given, as he termed it, ‘appropriate weight’. These included:
    1. (i)
      The Appellant residing in an area with significant crime;
    2. (ii)
      The Appellant’s Mother has had her car stolen from her residence;
    3. (iii)
      The Appellant’s partners home had been broken into three times;
    4. (iv)
      The Appellant’s partner’s daughter has had her car stolen twice in 18 months;
    5. (v)
      That due to Covid restrictions, there were no other persons or vehicles in the vicinity of the intersection where the offence occurred; and
    6. (vi)
      The stolen vehicle ran a red light and the Appellant followed through a green light.
  4. [23]
    The Appellant argues that these matters were relevant to his state of mind and ought to have been weighed against the actions of the perpetrators, the car thieves. The learned Magistrate however specifically gave consideration to these matters when determining the question of proportionality and reasonableness. He specifically discussed the actual actions giving rise to the offending and said:

The question of proportionality is important here. When one looks at the inherent dangers involved in travelling at more than 50 kilometres an hour above the designated speed limit and at such a high speed of 125 kilometres an hour, balancing its possible property damage or increase property damage to a vehicle or even location of thieves then it is clear to my mind that that action of travelling at such a speed is excessive and disproportionate to the purported emergency. In any event, which it may be subjectively, to the Defendant, an emergency and noting that a threat to the property may constitute an emergency, I am of the view that an action in pursuing a stolen car is not one which an ordinary person would do.

This is said noting the Defendant’s intention of not wanting to engage in vigilante activity but being more confined to being in a position to relay information about the location of the stolen vehicle to police to assist in their apprehension of the thieves. It is also noted, also, that the stolen vehicle proceeded through the same intersection where the Defendant was depicted on the speed camera with the stolen vehicle travelling at high speed through a red light. The light happened to change to green at the time the Defendant travelled through it.

The Defendant maintains there was little risk in his conduct because of COVID restrictions in place, he was aware many establishments were closed and there would be less traffic on the roads, indeed, he said he did not sight any other traffic. However, this does not exclude the potential for damage to be inflicted upon the Defendant himself in an accident caused by travelling at that high speed that would incorporate injury or worse to the Defendant and damage to his vehicle or other public property of a fixed nature in the area. To say that the Defendant did not see any other road users in the vicinity does not, of course, exclude their presence or the sudden appearance of other road users, be they pedestrians, vehicles, cyclists or others.

In any event, even if the Defendant is subjectively of the view that it was an emergency I do not find that his actions were those of a reasonable person in those circumstances and that, in any event, such action is completely disproportionate to the seriousness of the criminal conduct he was wishing to prevent in the further damage to the vehicle or the apprehension of the thieves as is his stated intention, to assist in the relaying of the information which may assist in that apprehension or prevention. The Defendant has therefore not made out this defence.

  1. [24]
    As the learned Magistrate noted in his decision, Judge McGill in Berbic v Steger [2005] QDC 294, recognised that S. 25 of the Code raises two issues, firstly whether there is an extraordinary emergency, and if so, whether an ordinary person, possessing ordinary power of self-control could not reasonably be expected to act, other than as the Defendant did here.
  2. [25]
    Firstly, it must be found that there was an extraordinary emergency. That is not the case here. No matter what might have been at play in the Appellant’s mind, or what his life experience might have been, seeing a stolen vehicle, owned by a friend or family does not give rise to emergency, extraordinary or not. It may certainly have been distressing but it does not give rise to emergency.
  3. [26]
    Similar to the finding of the Magistrate I am also satisfied that even if the Appellant was genuinely of the view that this actively constituted an emergency, the action of following, even if not in the guise of vigilantism, were not the actions of an ordinary person with ordinary powers of self-control.
  4. [27]
    The Appellant’s life experience may be a factor which heightened his reaction to what he observed that early morning, but that does not make his actions lawful or reasonable. His actions did not reflect an ordinary person with ordinary powers of self-control, response. The defence relied on arising from S. 25 of the Criminal Code, must as the learned Magistrate found, fail. Any reliance placed upon the opinion of Ms Tanya Cornford is, with respect misguided. Her opinion, whilst no doubt genuinely held is not in any way determinative of an assessment such as that required to be made by the Court.
  5. [28]
    The second defence raised by the Appellant arose pursuant to S 31 of the Code and specifically subsection (d)(i),(ii) and (iii). The section is in these terms:
  1. (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—
  1. (d)
    when—
  1. (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
  1. (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
  1. (iii)
    doing the act or making the omission is reasonably proportionate to the harm or detriment threatened.
  1. [29]
    The Appellant argues that his actions this day were done in order to save the property of his partner’s daughter. He submits that, “the consequences relevant to the offending would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect and that the accused had the honestly (held?) belief on reasonable grounds that he was placed in a situation of imminent peril and that the acts done to avoid the imminent peril were not out of proportion to the peril to be avoided”.
  2. [30]
    The vehicle had already been stolen when the Appellant first observed it. He argues that his actions were designed to prevent further damage to the vehicle and was therefore of the character of preventing further detriment.
  3. [31]
    I do not find that to be the case, in circumstances where the vehicle had already been stolen, that the police and authorities had been alerted and the actions of the Appellant could not have prevented the detriment already caused. But even if that were to have been the case, the section again requires that there should be reasonable proportionality to the harm or detriment threatened, and as was the position in respect of S. 25 and as found also by the learned Magistrate, the acts that give rise to the offending were not proportionate.
  4. [32]
    Finally, the Appellant seeks to rely on the provisions of S. 24 of the Criminal Code. S. 24 is in these terms:

Mistake of fact

  1. (1)
    A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
  1. (2)
    The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
  1. [33]
    The Appellant argues that his actions were reflective of an honest and reasonable but mistaken belief as to the existence of any state of things and that he was therefore not criminally responsible for the act of offending to any greater extent than if the real state of things had been such as he believed them to exist.
  2. [34]
    The learned Magistrate dealt with this particular argument succinctly and correctly in his reasons where he said,

In his oral submissions the Defendant stated that his belief that he was under a mistake, so section 24, was that he was acting in the execution of the law. His view was that if he followed the vehicle he increases the prospects of the perpetrators being apprehended and to prevent or lessen the prospect of damage being done to the vehicle.

The defence under section 24 is confined to a mistake of fact. Mistake of law is not an excuse. See section 22 of the Criminal Code. The Defendant has stated he relies on the mistake being that he was acting in the execution of the law which, to my mind, is clearly a mistake of law and not a mistake of fact. Here, the Defendant appears to rely on a mistake in respect of the proper construction and operation of potential defences under section 25 and section 31 of the Criminal Code. In Horne v Coyle ex parte Coyle [1965] Qd R 528 it was held that:

The mistake related merely to the proper construction and operation of an act and is a matter of law.

  1. [35]
    The appropriateness of this finding is clear when one considers the provisions of S. 22 of the Criminal Code and of the fact that ignorance of the law is no excuse. Otherwise, as the Respondent argues, there would be the ridiculous situation of a person being able to argue that they were honestly and reasonable but mistakenly of the view that they were acting in accordance with the law and that they were not liable for the offence.
  2. [36]
    As such, the appeal fails on all of the grounds sought to be relied upon, and the orders of the Court will be:
  1. That the appeal be dismissed.
Close

Editorial Notes

  • Published Case Name:

    Dart v Queensland Police Service

  • Shortened Case Name:

    Dart v Queensland Police Service

  • MNC:

    [2022] QDC 93

  • Court:

    QDC

  • Judge(s):

    Coker DCJ

  • Date:

    03 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Berbic v Steger [2005] QDC 294
3 citations
Jump To
Cite 1 - [2005] QDC 294
Cite 2 - [2005] QDC 294
Cite 3 - [2005] QDC 294
Davies v Commissioner of Police [2018] QDC 201
1 citation
Jump To
Cite 1 - [2018] QDC 201
Dudley v Ballantyne [1998] WASCA 198
2 citations
Jump To
Cite 1 - [1998] WASCA 198
Cite 2 - [1998] WASCA 198
Dunjey v Ross [2002] WASCA 14
2 citations
Jump To
Cite 1 - [2002] WASCA 14
Cite 2 - [2002] WASCA 14
Fox v Percy (2003) 214 CLR 118
1 citation
Jump To
Cite 1 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
1 citation
Jump To
Cite 1 - (2003) HCA 22
Horne v Coyle; ex parte Coyle [1965] Qd R 528
1 citation
Jump To
Cite 1 - [1965] Qd R 528
LIB v Queensland Police Service [2018] QDC 259
2 citations
Jump To
Cite 1 - [2018] QDC 259
Cite 2 - [2018] QDC 259
McDonald v Queensland Police Service[2018] 2 Qd R 612; [2017] QCA 255
1 citation
Jump To
Cite 1 - [2017] QCA 255
R v Webb [1986] 2 Qd R 446
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 446
Cite 2 - [1986] 2 Qd R 446
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
1 citation
Jump To
Cite 1 - (2016) 90 ALJR 679
Robinson Helicopter Company Incorporated v McDermott & Ors [2016] HCA 22
1 citation
Jump To
Cite 1 - [2016] HCA 22

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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