Kumar v Commissioner of Police
[2023] QDC 72
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- Unreported Judgment
- Kumar v Commissioner of Police[2023] QDC 72
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Kumar v Commissioner of Police[2023] QDC 72
Kumar v Commissioner of Police[2023] QDC 72
DISTRICT COURT OF QUEENSLAND
CITATION: | Kumar v Commissioner of Police [2023] QDC 72 |
PARTIES: | ROHAN KUMAR (Appellant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO/S: | 34 of 2022 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 Justices Act 1866 (Qld) |
ORIGINATING COURT: | Magistrates Court at Beaudesert |
DELIVERED ON: | 5 May 2023 (ex tempore) |
DELIVERED AT: | District Court at Southport (the matter was transferred from Beenleigh District Court on 24 March 2023) |
HEARING DATE: | 24 March 2023 and 5 May 2023 (further written submissions of the respondent provided on 6 April 2023 and 28 April 2023 and further material provided by the appellant on 16 April 2023) |
JUDGE: | Holliday KC DCJ |
ORDER: |
|
CATCHWORDS: | APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where the appellant appeals against his conviction for contravening s 13G (1) of the Transport Operations (Road Use Management- Vehicle Standards and Safety) Regulation 2010 – whether Magistrate was in error in finding that elements of the offence were proved —whether the legislation applied to the vehicle being driven by the appellant |
LEGISLATION: | Justices Act 1886 (Qld), ss 222 and 223 Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) |
CASES: | Allesch v Maunz (2000) 203 CLR 172 Pavlovic v Commissioner of Police [2007] 1 Qd R 344 Robinson Helicopter Co Inc v McDermott [2016] HCA 22 White v Commissioner of Police [2014] QCA 121 |
COUNSEL: | The appellant appeared on his own behalf A Black for the Respondent (24 March 2023) K Lemass for the Respondent (5 May 2023) |
SOLICITORS: | The appellant appeared on his own behalf Office of the Director of Public Prosecutions for the Respondent |
Background
- [1]On 4 August 2022 the appellant was convicted after a summary trial of the offence of driving a light vehicle with ground clearance less than stated distance contrary to s 13G(1) of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulation 2010 (Qld) (the Regulation).
- [2]The appellant, who is self-represented on this appeal, filed a Notice of Appeal on 1 September 2022. The Notice of Appeal states the ground of appeal as “Magistrate refused an adjournment when I was still waiting on other information (evidence) pertinent to this case”.
- [3]On 18 November 2022 the appellant filed a one page outline of argument which details further contentions in addition to the ground in the notice of appeal.
- [4]The appellant raised further contentions on the hearing of the appeal on 24 March 2023 and the matter was adjourned part-heard to allow both parties to file further submissions in relation to one issue as detailed further below.
- [5]The appellant made further oral submissions on 5 May 2023.
The Nature of the Appeal
- [6]The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). Subject to an application being made pursuant to s 223 of the Justices Act, such an appeal is by way of rehearing on the evidence below. In order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.[1] I am required to conduct a real review of the evidence and the learned Magistrate’s decision and make my own determination giving due deference and placing a good deal of weight on the learned Magistrate’s view.[2]
The appellant’s position on appeal
- [7]In the appellant’s outline of argument he contends as follows:
- (a)The magistrate ought to have granted the appellant’s request for an adjournment because relevant information was not available, which would have benefited the appellant’s case.
- (b)The appellant was wrongfully directed to make a Right to Information request, which was not answered in time for the hearing through no fault of the appellant.
- (c)The measurement of the muffler (less than 100 millimetres) was not taken with an instrument designed for exact and accurate estimate; nor was it recorded in an environment conductive for the measurement to be taken. A police notebook alleged to be 100mm was used and applied not only for this measurement but also to gauge the distance (less than a metre) between the low point and the axle.
- (d)There is no rear wheel axle and the low point is greater than one metre from the only axle which is a front wheel axle.
- [8]In oral submissions on the hearing of the appeal on 24 March 2023 the appellant raised further contentions for the first time that:
- (a)he was not afforded procedural fairness on the adjournment application; and
- (b)the vehicle being driven by him was a 1994 Honda Integra and, as such, the legislation did not apply to that vehicle due to the date of manufacture.
- [9]The matter was adjourned, on the request of the parties, to allow further consideration of the issue set out at paragraph 8(b) of these reasons. Dates were provided for the filing of supplementary submissions limited to that issue.
- [10]The defendant filed the following on 16 April 2023:
- (a)a tax invoice dated 15 April 2013 for $115 issued by “PerFOURmance Motorsports” for labour particularised as ‘carry out ground clearance measurements as per paperwork customer provided. As per paperwork supplied, this vehicle has 150mm ground clearance.’
- (b)‘Vehicle Standard (Australian Design Rule 43/02 – Vehicle Configuration and Dimensions) 2006.’
- (c)Three pages of a manual including the introduction page, design specifications and body specifications said to be from a Haynes Workshop manual.
- (d)A covering email.
- [11]On 5 May 2023, further oral submissions were made by the appellant. He made clear that in relation to the filing of material on 16 April 2023, it related primarily to the manufacturing date of the vehicle to demonstrate that it was 1994. With my leave, he returned to issues that he had raised on 24 March 2023 and made, by reference to portions of the transcripts, submissions primarily directed at why the Magistrate ought not have been satisfied beyond reasonable doubt of the elements of the offence.
The respondent’s position on appeal
- [12]The respondent submits there is no substance in the contentions of the appellant and the appeal should be dismissed. In relation to the point raised by the appellant in oral submissions detailed at paragraph 8(b) of these reasons, the respondent submits that the issue was not raised at the summary trial; there is no evidence as to details of the car; and, in any event, the appellant’s vehicle was required to comply with the legislation even if it were manufactured before 1995.[3] Further, if the appellant is seeking leave pursuant to s 223 of the Justices Act to rely on the material filed on 16 April 2023 this should be refused as the appellant has not articulated any special grounds for its admission and, in any event, its admission would not impact on the determination of the appeal.
The Regulation
- [13]Section 13G (1) of the Regulation provides:
“A person must not drive a light vehicle on a road if the vehicle has a ground clearance of less than—
- (a)at a point within 1m of an axle—100mm; and
- (b)at the midpoint between two adjacent axles—one-thirtieth of the distance between the centres of the axles; and
- (c)at any other point—the distance that allows the vehicle to pass over a peak in the road if the gradient on either side of the peak is 1:15.”
- [14]Section 13G (3) of the Regulation provides that “ground clearance”, of a light vehicle, means “the minimum distance between the ground and the vehicle’s underside, other than its tyres, wheels, wheel hubs, brake backing plates, flexible mudguards and mudflaps.”
- [15]Axle is defined in schedule 4 of the Regulation as “1 or more shafts, positioned in a line across a vehicle, on which 1 or more wheels intended to support the vehicle turn.”
Discussion
- [16]The appellant is self-represented on the appeal. Whilst there is only one ground of appeal relating to the failure to adjourn the hearing of the matter, the appellant raises other matters in his one page outline of argument and raised further matters in oral submissions. The respondent has responded to the arguments and I propose to address each of those arguments as if they are grounds of appeal in all the circumstances.
- [17]I will turn firstly to consider the material filed by the appellant on 16 April 2023. No application for leave pursuant to s 223 of the Justices Act was filed. The appellant’s covering email includes the words “Please find attached the relevant measurement data and mechanics report for [number plate of vehicle] 1994 Honda Integra which I am submitting under s 223 of the .” This additional material was filed following my order permitting further submissions relevant to the issue identified at paragraph 8(b) of these reasons. It did not appear that the additional material was relevant to that issue rather, at its highest, it was relevant to the issue of the ground clearance of the vehicle and that it was more than 100mm. Having said that, the appellant indicated at the hearing on 5 May 2023 that the material was being filed to demonstrate that the date of manufacture of the vehicle was 1994. I accept the respondent’s submission that the additional material does not show the vehicle’s ground clearance at the time of the offence and does not assist the appellant in demonstrating that it was not open to the magistrate to determine that the vehicle did not meet the clearance of 100 mm. If the material demonstrates the date of manufacture of the vehicle, as I will turn to in a moment, the admission of that evidence would not impact on the determination of the appeal. I am not satisfied that the appellant has demonstrated special grounds for the admission of this material.[4] If an application for leave was properly made pursuant to s 223 of the Justices Act, I would have refused it.
- [18]There is no merit in the appellant’s ground of appeal nominated in the Notice of Appeal that the Magistrate ought to have granted the appellant’s request for an adjournment to allow him to obtain “relevant information”. There was no submission made before the Magistrate (or before me) as to the nature of the “relevant information” which would have “benefited the appellant’s case”.[5] In those circumstances, the appellant has not demonstrated that the Magistrate was in error in refusing the adjournment request.
- [19]In oral submissions, the appellant raised that he was not afforded sufficient opportunity to make submissions on his application for adjournment below. In effect, his contention is that he wasn’t afforded procedural fairness on the adjournment application. I do not accept this. It was the appellant’s application and he made submissions.[6] Whilst the appellant did say below "I can list down everything I’ve requested for (sic)”[7] and the Magistrate thereafter proceeded to hear brief submissions from the prosecution and then refused the application for adjournment,[8] the appellant was given the opportunity to make submissions as to why the adjournment should be granted.[9]
- [20]
- [21]As to the first point, it was open for the magistrate to be satisfied that the vehicle did not meet the clearance of 100mm. The body worn camera footage and the photographs demonstrate that the road was flat and that the muffler was much lower than the height of the police notebook which was measured at approximately 100mm.[12] It can be seen that the muffler was about ½ way down the notebook. This was not a case where the height of the point of measurement was close to 100mm such that there would need to be exact precision before the magistrate could be satisfied to the requisite standard. It was clear from the evidence of the police officers[13] as well as the exhibits tendered, that the point of measurement had a ground clearance of significantly less than 100 mm.
- [22]As to the second point in the written outline and the submissions made on 5 May 2023, the evidence of the police officers was that the point of measurement was within one metre of an axle.[14] The defendant contends that the vehicle does not have a rear axle and it was not open for the Magistrate to be satisfied that the point was more than one metre from the front axle. The appellant produced no evidence to support this contention. It was open to the Magistrate to accept the prosecution evidence that the point of measurement was within one metre of an axle.
- [23]There is also no merit in the appellant’s submission that the vehicle was not required to comply with the legislation as he contends it was manufactured in 1994 and not modified.[15] The Regulation applies to a “light vehicle”. “Light vehicle” is defined in schedule 4 of the Regulation as “a vehicle (including a combination) that is not a heavy vehicle”. Light vehicle is not defined by reference to year of manufacture. This may well be thought to be for good reason given that an objective of the Transport Operations (Road Use Management) Act 1995 is to promote the effective and efficient movement of people, goods and services and to improve road safety. I agree with the submissions of the respondent that it would not promote a safe and efficient road network if the definition to be given to “light vehicle” in s 13G (1) of the Regulation was referenced by year of manufacture given the import of the provision. I further agree with the submissions of the respondent that other references in the Regulation are specific when classes of vehicles are to be excluded.[16]
Post Script-Costs
- [24]Following making order 1 and giving my reasons, I heard the parties as to costs on 5 May 2023. The respondent sought statutory costs in the sum of $1800.00 for the first day of the hearing and sought “some” costs for the second day. Given the circumstances of the matter being adjourned to the second day, including that it was a joint application in circumstances where the respondent could not obtain the necessary instructions on the first day, I declined to order costs in relation to the second day. Otherwise, I determined, given the outcome of the appeal, that statutory costs should be awarded.
Order
- [25]The order of the court is as follows:
- The appeal is dismissed.
- The appellant pay the costs of the respondent fixed in the sum of $1800.00.
Footnotes
[1] Allesch v Maunz (2000) 203 CLR 172; White v Commissioner of Police [2014] QCA 121 at [6]-[8].
[2]Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686 at [43].
[3] Paragraph 2.1 of respondent’s supplementary submissions.
[4]Justices Act 1886 (Qld) s 223 (2). The requirement in s 223(2) directs attention both to the reasons why the “new evidence” was not adduced at first instance, and the nature of it (Pavlovic v Commissioner of Police [2007] 1 Qd R 344, [30]-[36]). It is relevant to note that the appellant in the hearing of the appeal on 24 March 2023 accepted that he would not be able to satisfy the criteria in s 223 (2) of the Justices Act as he would “not be able to come up with a reason on why that was not available in the Magistrates Court” (transcript of appeal hearing on 24 March 2023 at page 6 lines 1-5. See also at page 9 lines 30-40 and page 15 at lines 1-10).
[5] Outline of submissions of the appellant at paragraph 1.
[6] Transcript of summary trial on 4 August 2022 at page 2 lines 40-45.
[7] Transcript of summary trial on 4 August 2022 at page 3 line 7.
[8] Transcript of summary trial on 4 August 2022 at page 3 line 27.
[9] Transcript of summary trial on 4 August 2022 at page 2 lines 40-45.
[10] The appellant took the court to passages in the transcript at the oral hearing.
[11] The appellant took the court to passages in the transcript at the oral hearing.
[12] Transcript of summary trial on 4 August 2022 at page 14 lines 25-30.
[13] Transcript of summary trial on 4 August 2022 at page 10 lines 17-25 and at page 20 lines 4-5.
[14] Transcript of summary trial on 4 August 2022 at page 13 lines 33-35 and at page 18 lines 5-15. See also at page 20 lines 25-27.
[15] Note that there was no evidence of same below or on appeal.
[16] See for example, Schedule 1 sections 16, 23 and 60.