Queensland Police Service v Hoey
[2018] QMC 5
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- Unreported Judgment
- Queensland Police Service v Hoey[2018] QMC 5
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Queensland Police Service v Hoey[2018] QMC 5
Queensland Police Service v Hoey[2018] QMC 5
MAGISTRATES COURT OF QUEENSLAND
CITATION: | QPS v Hoey [2018] QMC 5 |
PARTIES: | QPS (Applicant) v Tanya Louise Hoey (Defendant) |
FILE NO/S: | MAG 00211590/17(3) |
DIVISION: | Magistrates Court |
PROCEEDING: | Summary Hearing |
ORIGINATING COURT: | Proserpine Magistrates Court |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Proserpine |
HEARING DATE: | 15 February 2018 |
MAGISTRATE: | Young S |
ORDER: | Dangerous operation of a motor vehicle – Defendant convicted |
CATCHWORDS: | Dangerous operation of a motor vehicle – Defendant accelerated vehicle – persons standing next to and in vehicle – sudden or extraordinary emergency – domestic violence. Legislation Criminal Code s 328A Criminal Code s 25 Domestic & Family Violence Protection Act Cases R v Sheldon [2014] QCA 328 R v Webb [1986] 2 Qd R 446 R v Wilson [2009] 1 Qd R 476 Jones v Dunkel |
COUNSEL: | Mr T. Collins of counsel for Defendant |
SOLICITORS: | Mr B. Berger for Prosecution Macrossan & Amiet for Defendant |
Background
- [1]At 5:10pm on 10 April, 2017 Whitsunday Police were tasked with urgently attending the Boathouse Apartments, Airlie Beach to respond to a report that a pedestrian had been run over by a car and the car had left the scene. As they rushed from the station, police left the driver of that vehicle waiting behind at the station.
- [2]When police later returned, the Defendant, Ms Hoey, was waiting for them still.
- [3]Ms Hoey provided a statement to police later that evening about the events at the Boathouse Apartments that had occurred that afternoon (and ultimately that statement was tendered as Exhibit 7).
- [4]Ms Hoey was subsequently charged with a single offence of Dangerous operation of a vehicle under s 328A(1) of the Criminal Code, in that on the 10th day of April, 2017 at Airlie Beach in the State of Queensland she dangerously operated a vehicle, namely a motor car, in a place, namely Airlie Beach. There were no circumstances of aggravation alleged in the charge.
- [5]Ms Hoey entered a plea of not guilty to this charge and a hearing was conducted in the Proserpine Magistrates Court on the 15th February, 2018. Evidence was called by both the prosecution and defence. The Prosecution witnesses consisted of:
- Daniel Burger, the former partner of the Defendant and father of the child Saskia (with Ms Hoey),
- Mrs Hermyntje Hill, the mother of Mr Burger,
- Ms Kelli Medford, the present partner of Mr Burger,
- Ms Natasha Beverstock a receptionist at the Boathouse Apartments,
- Constable Jenine Gardel and Constable Troy Lauder (both officers provided procedural rather than substantive evidence).
The Defence called Ms Hoey to give evidence on her own behalf and, of course, in so doing lost none of the presumption of innocence to which she is entitled.
- [6]I should say at the outset that I found the evidence of both Mr Burger and Ms Hoey as somewhat unreliable. I formed the view during their respective evidence-in-chief, which was confirmed by the conclusion of cross-examination, that both parties had a tendency to minimise their own conduct in the incident and to exaggerate the actions of the other. Neither performed well under cross-examination. However at no stage did I form the view that either party was intentionally seeking to mislead the Court, rather, they were both subject to the all too common experience of recalling events that best reflect their own involvement. The basic facts of the matter were not especially contentious between them although differences in detail were important in the resolution of the charge.
- [7]I have not received the benefit of a transcript of the proceedings, but have summarised the relevant evidence of the witnesses as it bears upon the charge. Not all evidence has been recounted in this decision but that does not mean that all of the evidence was not considered and applied.
The law and the charge
- [8]Section 328A of the Criminal Code provides:
“Dangerous operation of a vehicle
- (1)A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.
Maximum penalty—200 penalty units or 3 years imprisonment.
- (2)If the offender—
- (a)at the time of committing the offence is adversely affected by an intoxicating substance; or
- (b)at the time of committing the offence is excessively speeding or taking part in an unlawful race or unlawful speed trial; or
- (c)has been previously convicted either upon indictment or summarily of an offence against this section; the person commits a crime.
Maximum penalty—400 penalty units or 5 years’ imprisonment.
- (3)If the offender has been—
- (a)previously convicted either upon indictment or summarily of an offence against this section committed while the offender was adversely affected by an intoxicating substance; or
- (b)twice previously convicted either upon indictment or summarily (or once upon indictment and once summarily) of the same prescribed offence or different prescribed offences; the court or justices shall, upon conviction, impose as the whole or part of the punishment, imprisonment.
- (4)A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place and causes the death of or grievous bodily harm to another person commits a crime and is liable on conviction on indictment—
- (a)to imprisonment for 10 years, if neither paragraph (b) nor (c) applies; or
- (b)to imprisonment for 14 years if, at the time of committing the offence, the offender is—
- (i)adversely affected by an intoxicating substance; or
- (ii)excessively speeding; or
- (iii)taking part in an unlawful race or unlawful speed trial; or
- (c)to imprisonment for 14 years, if the offender knows, or ought reasonably know, the other person has been killed or injured, and the offender leaves the scene of the incident, other than to obtain medical or other help for the other person, before a police officer arrives.
- (5)The offender may be arrested without warrant.
- (6)In this section—
excessively speeding means driving or operating a vehicle at a speed more than 40km/h over the speed limit applying to the driver under the Transport Operations (Road Use Management) Act 1995.
operates, or in any way interferes with the operation of, a vehicle dangerously means operate, or in any way interfere with the operation of, a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances, including—
- (a)the nature, condition and use of the place; and
- (b)the nature and condition of the vehicle; and
- (c)the number of persons, vehicles or other objects that are, or might reasonably be expected to be, in the place; and
- (d)the concentration of alcohol in the operator’s blood or breath; and
- (e)the presence of any other substance in the operator’s body.
place does not include a place being lawfully used to race or test vehicles under a licence or another authority under an Act and from which other traffic is excluded at the time.
prescribed offence means—
- (a)an offence against this section; or
- (b)an offence charged on indictment involving the driving or operation of a vehicle at a speed causing or likely to cause injury to anyone; or
- (c)an offence against the Transport Operations (Road Use Management) Act 1995 , section 79(1), (1F), (2), (2AA), (2A), (2B), (2D) or (2J).
the public includes passengers in a vehicle whether in a public or private place.
unlawful race means a race involving a vehicle in contravention of the Transport Operations (Road Use Management) Act 1995, section 85.
unlawful speed trial mean a trial of the speed of a vehicle in contravention of the Transport Operations (Road Use Management) Act 1995, section 85.
- [9]The elements of the charge that the prosecution must prove beyond reasonable doubt are that the Defendant, on the date and place alleged:
- Operated a vehicle;
- Dangerously;
- In any place.
- [10]To prove dangerous operation the test is wholly objective: was the operation of the vehicle dangerous in all the circumstances? The manner of driving must amount to more than a lack of due care; it must be a real danger to the public (which could include a passenger). Fault is not an element of the charge and although some fault that caused the danger is required to be established on the part of the driver, it is not equivalent to the consideration of a finding of negligence (see R v Webb [1986] 2 Qd R 446). As such, the Defendant’s state of mind will not by itself raise a defence where an objective assessment of the operation of the vehicle was that it was dangerous – although state of mind may be relevant to a defence otherwise open on the evidence pursuant to the provisions of the Criminal Code (see R v Wilson [2009] 1 Qd R 476).
- [11]The first and third elements of the charge are not in any way disputed – evidence from prosecution and defence was consistent that Ms Hoey was driving a motor vehicle (a Hyundai sports wagon) just before and after 5pm on the 10 April, 2017, at a place, being (relevantly) the set down area at the front of the Boathouse Apartments, Port of Airlie, Airlie Beach and that she drove that vehicle away from the scene.
- [12]The contested aspect of the charge was firstly, that Ms Hoey did not operate the vehicle in a way that was dangerous, or secondly that if she did, the prosecution had not negatived the defence of sudden or extraordinary emergency under section 25 of the Criminal Code (the prosecution bearing the onus of excluding any such defence raised on the evidence beyond reasonable doubt).
The evidence
- [13]What occurred arose from the contact arrangements Ms Hoey and Mr Burger had made – and varied – with respect to their daughter Saskia. The broad arrangement set up via text messages between the parties on the 9th April was that on the 10th April Mr Burger would pick Saskia up from Little Gecko’s – a kindergarten located at Cannonvale – at 2:30pm and then take her and Mr Burger’s wider family (who had travelled to Airlie Beach to visit) to Cedar Creek Falls for a swim. Mr Burger also indicated that the pet dog Ruby could go along - to which Ms Hoey agreed.
- [14]As it transpired, on the 10th April the wider family visited Cedar Creek Falls in the morning and so the afternoon became playing in the pool at the Boathouse Apartments where they were all staying (and where Mr Burger lived). Saskia was duly collected at about 2:30pm however Mr Burger did not then go to pick up the dog from Ms Hoey’s house - as she expected - but went straight back to the Apartments. He did not communicate this change of plan.
- [15]At 3:09pm Ms Hoey sent two text messages to Mr Burger saying:
“Where are you? Have you picked Sas up?”
“Where are you? You said you were coming here with Sas to get Ruby?”
- [16]At 3:12pm Ms Hoey contacted Little Geckos to ask if Saskia had been picked up. She was told that Mr Burger had picked Saskia up but she had not been signed out.
- [17]At 3:24pm Ms Hoey contacted the Whitsunday Police in an attempt to report Saskia missing. While she was on the phone with police Ms Hoey received the following text message from Mr Burger:
“Saskia is with us at the unit. The cousins went out to Cedar Creek this morning she has been swimming with them”.
And shortly thereafter:
“Are you able to drop Saskia with us by 7:30am tomorrow? Or will she stay overnight here with us instead?”
- [18]Ms Hoey replied:
“I’ll pick her up today at 4:30pm, see you out the front then”.
To which Mr Burger responded:
“Let’s do 5 instead”.
Ms Hoey replied:
“OK 5”.
- [19]Strangely, in his evidence in chief Mr Burger was adamant that the changeover arrangement was for 7pm and it was not until he was repeatedly directed to copies of the text messages (Exhibit 4) that he conceded this was not the case. However, as the evidence of Mrs Hall and Ms Medford established, Mr Burger had told both of them that the changeover was for 7pm, even to the point when he was talking to Ms Medford as he was walking out of the reception area of the Boathouse Apartments with Saskia.
- [20]In his evidence Mr Burger was at pains to point out that he had been denied contact with Saskia for an extended time, although limited contact was by then starting to occur. He felt however that Ms Hoey was placing conditions upon him that were unreasonable and ongoing such that he thought that if he were not to comply with those conditions he would be again denied contact with Saskia. He said that Ms Hoey had placed conditions upon him having contact with Saskia for the 10th April however under extensive cross-examination, he was forced to concede that there were no actual conditions imposed, but he still considered that conditions were “inferred”.
- [21]Ms Hoey arrived at the Boathouse Apartments at 4:52pm and sent the text “Downstairs” to Mr Burger, who then gathered Saskia and her backpack and proceeded downstairs. Apparently he asked his mother to accompany him, as she has also proceeded downstairs and out of the reception front doors.
- [22]Ms Hoey had pulled up in front of the Apartments reception area, which consisted of a circular driveway and covered portico, driving a blue Hyundai sports wagon. Ms Hoey was in the driver’s seat with the engine running. The transmission was in “park” and the handbrake on. She saw Mr Burger and Saskia come out of the reception area towards the car.
- [23]Mr Burger approached the car with Saskia and put her into her child seat in the rear passenger side. He placed Saskia’s backpack in the front passenger side, opening the front passenger door to do so and then closing it again. He returned to the back passenger door to say goodbye to Saskia.
- [24]At this point Mr Burger says he had a “conversation” with Ms Hoey, which started with him asking about some clothing items and then moved on to talk about the arrangements for Saskia being dropped off by Ms Hoey the next morning. For his part Mr Burger said that Ms Hoey was “curt” and “short” in how she spoke and was upset and angry. Ms Hoey says that Mr Burger was initially “really aggressive” and demanding the return of Saskia the next morning and was becoming more and more angry and aggressive as the conversation continued.
- [25]By this time both Mrs Hill and Ms Medford were standing some five metres or so from the car outside the reception area. Mrs Hill said she heard arguing that was getting more aggressive and after a minute or so approached Mr Burger telling him to “just go”. Ms Medford, (also the manager of the Apartments) says she heard both Mr Burger and Ms Hoey yelling and became concerned. She noticed that other guests were also walking around looking concerned.
- [26]As the argument continued and became heated, both Ms Hoey and Mr Burger gave evidence about a physical altercation involving the grabbing of hands around the belt clasps of the car seat where Saskia was sitting, buckled in. As part of that altercation (involving competing allegations about who was grabbing who and who had their hand first on the buckle release) Ms Hoey said that Mr Burger grabbed her hand and squeezed her between her thumb and index finger resulting in her crying out words to the effect that he was hurting her. Mr Burger said he had no recollection of such an event however both Mrs Hill and Ms Medford agreed that they heard Ms Hoey loudly use such words; and it is also consistent with the later evidence of Ms Beverstock, which initially drew her attention to the situation.
- [27]Mr Burger says he was by then concerned about the effect Ms Hoey’s actions were having upon Saskia, who was upset, and said words to the effect that if Ms Hoey did not calm down he would take Saskia back again. Ms Hoey confirms a similar version where she hears Mr Burger say that he is ‘taking Saskia’ although the timing is different in her version and has nothing to do with her own conduct. It is around this point Mrs Hill says she stepped in with a word to Mr Burger in order to give comfort to Saskia and that Mr Burger stepped back from the rear passenger door of the car. He gave evidence that he then moved back to the front passenger door and continued his ‘agitated discussion’ with Ms Hoey.
- [28]Both Mrs Hill and Ms Medford confirmed that during the course of the ongoing argument they also had words to say to Ms Hoey. Clearly their attitudes at the time had been influenced by Mr Burger’s earlier communication to them that Saskia’s changeover was not until 7pm. Nevertheless Mrs Hill, when she moved in to comfort Saskia in her car seat said to Ms Hoey that she “…should stop this rot…” but denied saying anything further. Ms Medford said that (shortly afterward) she opened the front passenger door and said loudly (but normally, being in her own description a naturally loud speaker) to Ms Hoey “…you’re batshit crazy, this is my place of work…” before slamming the car door closed and moving away about 6 metres.
- [29]Ms Medford says she saw from her new position that Mrs Hill had her feet on the ground outside the car and was leaning in to “cuddle” Saskia. She noticed that Mr Burger was at this time at the front passenger door, leaning down to continue to argue with Ms Hoey. By then Ms Medford’s staff were coming outside at which time she said to them that “… (Ms Hoey’s) crocodile tears are no good here”. Ms Medford denied under cross-examination that she had approached the car a second time to say these words or that she had yelled at Ms Hoey that she was ‘mentally unstable and a psychopath’.
- [30]Ms Medford went on to say that she clearly saw Ms Hoey look directly at Mrs Hill, then at Mr Burger and then the vehicle “took off” with a wheel spin. Ms Medford gave evidence that Ms Hoey looked angry and her “eyes were black”.
- [31]Mrs Hill gave evidence that she was standing beside the car with part of her torso inside the vehicle to comfort Saskia. She denied under cross-examination that she was standing upright beside the car. She could not recall where Mr Burger was in relation to the car. She had no particular recollection of what happened next (nor did she seem to have a clear recollection of the aftermath when paramedics, and later doctors, attended her). She said that the next she remembers she was on the ground with a lot of people around.
- [32]I was invited to regard the medical information tendered as Exhibit 5 as being contradictory of Mrs Hill’s evidence, especially with respect to her position at the vehicle when it was driven off by Ms Hoey. None of the authors of the various medical reports and observation charts were called to give evidence and it was submitted I should draw an adverse inference pursuant to the authority of Jones v Dunkel and further that the Court should regard such evidence as being proof of its content in the absence of the Prosecution calling the relevant witnesses.
- [33]However the medical documentation tends to support Mrs Hill’s version of events. The handwritten report made by (I presume) the ambulance paramedic identified as “Midgley” on 10/4/17 at 1810hrs from speaking to Mrs Hill states:
“Leaning on car – car took off. Mrs Hill landed on back onto ground…”
- [34]The handwritten “Progress Notes Emergency” from Proserpine Hospital under the hand of Dr Nissen (agreeably legible) dated 10/4/17 at 2030hrs record:
“…following fall from standing - was standing next to car consoling grand-daughter (inside car) when car reportedly “took off” causing her to stumble and fall; hitting the back of her head on the ground. no amnesia associated with event…”.
- [35]I do not regard the version of events apparently provided to the paramedic and the doctor on the day as being so significantly different from the evidence Mrs Hill gave in Court to give rise to a conclusion that her evidence was unreliable, or that an adverse inference should be drawn. That Mrs Hill might be standing next to the vehicle to the exclusion of her being partly inside the vehicle is too fine a distinction to draw, especially when Ms Hoey’s evidence was that she could not recall Mrs Hill comforting Saskia at all; nor did she believe that the car caused Mrs Hill to fall over.
- [36]Mrs Hill’s main difficulty in cross-examination was that she did not recall ever giving those versions of events to the medical professionals, but insofar as this relates to an objective test of the dangerous operation of a vehicle, I do not consider this shortcoming supports the Defendant’s arguments.
- [37]Ms Beverstock, who was the only truly independent witness, was seated behind the reception desk when her attention was drawn to the argument outside by a woman screaming. She recalls looking out and seeing Mrs Hill “half in the car” (and denied in cross-examination that Mrs Hill was standing up outside the car) and said that Mr Burger moved around the car and was “just standing” at the driver’s side passenger door. The woman in the driver’s seat was ‘quite loud’. Ms Beverstock then says she heard the car accelerate with force, the tyres squeal and the car speed off with Mrs Hill still ‘half in’ the vehicle.
- [38]For his part, Mr Burger says that at the time Ms Hoey drove off he was standing at the front passenger door and that Mrs Hill was leaning in the car with Saskia. The front passenger door was closed and the rear passenger door was open. His evidence was that he saw Ms Hoey’s demeanour change, her face and pupils “narrow”. She then used her left hand to engage the transmission into ‘Drive’ then faced forward and drove off. He says he remembered the tyres squeal and the vehicle speed away, although it shortly stopped and he was able to chase after Ms Hoey and yell something at her.
- [39]At all times Mr Burger denied that Ms Hoey was frightened, or appeared so, and she was in fact furiously angry but he did accept in cross-examination that he had not previously mentioned to police his evidence about Ms Hoey’s ‘change of demeanour’.
- [40]Ms Hoey gave evidence that after the physical altercation with Mr Burger involving their hands, both Mr Burger and Mrs Hill were standing outside the rear passenger door of the vehicle and the door was open. She says that Ms Medford came back to the front passenger door and yelled at her that her “… crocodile tears were no good here…” but then stepped away again.
- [41]Ms Hoey also gave evidence that Mr Burger was “screaming and yelling and being abusive” and she had repeatedly – “15 times” – asked him to close the door because she was scared. She said that the situation had escalated to a degree that caused her fear for Saskia’s safety and so she took her right hand off the steering wheel to shift the gear into “drive” and then release the handbrake and drove off. She then accelerated away (in her statement she said that she rapidly pressed the accelerator, but not all the way to the floor) and in her evidence in chief said she was not aware of any other people in the car.
- [42]In her statement to police later that evening (Exhibit 7) the following paragraphs are relevant:
“30. Dan continued pulling on the car seat. Saskia was becoming scared Kelli and Herma were continuing to yell at me. I became so frightened for my safety and welfare and also for Saskia. I felt my only option was to try and drive off.
31. The car was in Park and the handbrake was on. I took the handbrake off and put the car in Drive. I knew both doors were open. I didn’t see anyone else in the car just Saskia and I”. (my emphasis).
- [43]In cross-examination regarding this point in time Ms Hoey elaborated on her evidence in chief that Mr Burger was at the rear passenger door with Mrs Hill standing beside him. She said she was reaching back from the driver’s seat with her left hand over the seat belt buckle and there was no one else in the car. Mrs Hill was definitely not in the car and in fact Ms Hoey was not aware that Mrs Hill had ever been in the car comforting Saskia.
- [44]In further cross-examination Ms Hoey confirmed that Mr Burger had not made any threats, but had squeezed her hand twice; said that she was not angry at Mr Burger and did not even become angry at the situation. Rather she was “terrified”. Ms Hoey did not believe that she had ever yelled at Mr Burger during the course of their ‘discussion’, although she agreed she yelled when her hand was hurt.
- [45]Ms Hoey was aware that when she drove off that “Saskia’s door” was open and as such she slowed down about 10 metres down the road to check that both doors were shut. She agreed that she may have accelerated the car rapidly with disregard for the people in proximity to the car but was adamant that Mrs Hill was not in the car when she drove off. Mr Burger’s attempts to remove Saskia had apparently ceased by the time she drove off, as Ms Hoey maintained that he was standing next to Mrs Hill outside the rear passenger door.
- [46]Finally, Ms Hoey gave evidence that she felt that the only way to get out of the situation was to drive away, although under further cross-examination she conceded, reluctantly, that perhaps other courses of action might have been open to her, including getting out of the car (although she did not consider this to be a realistic option because it would mean leaving Saskia with 3 screaming people). Similarly Ms Hoey did not consider calling the police, as she had done earlier that afternoon, to be a reasonable option notwithstanding that she had her phone with her, but did not explain why.
Conclusion – dangerous operation
- [47]Having considered all of the evidence, including that summarised above, and applying an objective standard to Ms Hoey’s driving of the vehicle, I am satisfied beyond reasonable doubt that Ms Hoey operated her vehicle in such a way as to actually cause danger to people in the immediate proximity of the car.
- [48]In reaching this conclusion I have not considered the consequences that occurred as a result of her accelerating away as being determinative of the issue (and have deliberately omitted recounting most of the evidence in this regard for this reason). I accept the submission of defence counsel (pursuant to the authority of R v Sheldon [2014] QCA 328) that the test is not whether Ms Hoey in fact knocked Mr Burger or Mrs Hill over when she drove off making her driving dangerous, but rather whether her manner of operation of the vehicle was such as could objectively be considered dangerous - which is not determined by reference to the consequences of her actions. However consequences may, and in this case do, contain relevant inferences to the objective test being applied.
- [49]I find as a matter of fact that Mr Burger was standing at the front passenger side of the vehicle; that the rear passenger door was open and that Mrs Hill was partially inside the vehicle comforting the distressed Saskia. I do not accept Ms Hoey’s version of these events as it is clearly contradicted by a number of other witnesses and I consider the alternate version to be largely consistent between the other witnesses to the event, and compelling. Ms Hoey’s evidence was marked by both internal contradictions (for example, Mr Burger could not have been in the vehicle pulling at the car seat and not have been in the vehicle in some fashion at the time) and external contradictions (such as the clear evidence of all other witnesses present of Mrs Hill being partly in the car at the time Ms Hoey drove away).
- [50]Accelerating a vehicle from a stationary position with a person partially in the vehicle and with a car door open that would potentially impact a person standing at the front passenger door is actually dangerous to those people. I note that there is no suggestion that Ms Hoey’s actions were anything other than of her own volition. Ms Hoey’s operation of the vehicle was therefore dangerous.
- [51]Further, I find as a matter of fact that Mr Burger was knocked off his feet when the rear passenger door collided with him as the vehicle drove off, although no injury resulted. Mrs Hill was standing outside the vehicle and was leaning over with at least part of her torso inside the vehicle comforting Saskia when it accelerated away. She was forced out of the vehicle by the vehicle’s forward momentum, stumbled over and fell to the ground resulting in abrasions to her left knee and right shoulder, and a laceration to the back of her head.
- [52]I think it likely that Ms Hoey had no immediate knowledge of the consequences of her actions and that her first inkling was Mr Burger running up to the car afterward and yelling “…you’ve killed my mother…”. Ms Hoey’s next act is to drive to the police station because, as she said in her statement - which I accept to be an accurate reflection of her state of mind at the time:
“35. I was horrified and upset that I had potentially injured Herma…”.
- [53]As such her later denials in evidence in chief and cross-examination that the car had struck anyone cannot be accepted, although I formed the view that at no stage did Ms Hoey deliberately seek to harm anyone by her manner of driving, nevertheless her conduct was a long way short of that expected from a safe and prudent driver.
Conclusion – extraordinary emergency
- [54]Section 25 of the Criminal Code provides:
“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.”
- [55]Whether these circumstances amounted to a sudden or extraordinary emergency, and whether an ordinary person possessing an ordinary degree of self-control could not be expected to act otherwise, is a matter of fact. The evidential onus on raising the issues is with the Defendant, although once activated the onus of excluding the defence falls upon the prosecution beyond reasonable doubt.
- [56]I accept that there is sufficient evidence by Ms Hoey to give rise to consideration of the defence under s.25. She gave consistent evidence that she thought she had no other option other than to drive away, that three people were screaming at her and that Mr Burger was trying to take Saskia out of the car and, overcome with fear for her safety and that of Saskia, she drove away.
- [57]I do not accept however that the situation could be considered as a sudden or extraordinary emergency even on Ms Hoey’s version – and further, even if it was in fact an emergency, Ms Hoey had other options that a reasonable person with reasonable self-control would have preferred.
- [58]Ms Hoey’s version of events, although not entirely consistent between her evidence at trial and her earlier statement, was that Mr Burger was outside the rear passenger door, being verbally abusive; although no threats were being made towards her, she could not recall the exact words being used. It is unclear whether Mrs Hill was supposed to be saying anything at this time but Ms Hoey says she was standing next to Mr Burger. Ms Medford was about 6 metres away and again it was unclear whether she was saying anything at the time, but on balance I don’t believe Ms Hoey seemed to be suggesting that she was. Ms Hoey said there was no one in the car apart from her and Saskia; as such the physical altercation with Mr Burger must have ended and he had withdrawn from the vehicle.
- [59]Although I do not consider those facts to be entirely correct, even on Ms Hoey’s version I cannot accept that any circumstance of emergency existed. There was no imminent or emergent risk apparent towards Ms Hoey or Saskia, no threats were being made toward her and any immediate risk of Saskia being taken out of her car seat had receded. There were not three people screaming at her at the time and, although Ms Hoey had earlier been the subject of rebuke by Mrs Hill and Ms Medford, that was not at the time immediately prior to driving away and cannot be used to justify such action.
- [60]Further I do not accept that the attempt to remove Saskia from her car seat by Mr Burger – which certainly did occur – by itself would constitute an emergency situation justifying Ms Hoey suddenly driving off in the absence of some threat, intention, or attempt to commit harm.
- [61]Rather the situation was that Mr Burger was standing at the front passenger door with the door closed, speaking loudly and with some aggression. Mrs Hill was partially in the back seat comforting Saskia but not saying anything at that time and Ms Medford was some 6 metres away just having told her staff that Ms Hoey’s “…crocodile tears were no good here.” It is at this point that Ms Hoey, having been unfairly accosted by both Mrs Hill and Ms Medford earlier, with Mr Burger’s earlier statement that he would take Saskia back still in play, engaged the transmission, released the park brake and drove off to prevent Mr Burger from being able to again try and take Saskia out of the vehicle. Ms Hoey drove off in a manner without regard the danger to Mr Burger and Mrs Hill in order to maintain control of the situation; that is, of Saskia, and this does not amount to an emergency.
- [62]I have no doubt that Ms Hoey was distressed and upset and that the pace and traumatic nature of events as they occurred have not been easy for her to recall in sequence at the hearing. I have placed more weight on her statement to police than I have on her contradictory evidence at the hearing, but the situation, whether considered subjectively or objectively, could not be said to have constituted an emergency. There was no risk, or threat, or circumstance that could justify the application of s.25 of the Criminal Code. The situation was a nasty parenting dispute with each party wanting to assert control.
- [63]Even if the finding of no emergency is incorrect – and this Court is fully conscious of the insidious effects and consequences of coercive control and how it can evoke a strong, even visceral, response from those affected – a reasonable person exercising reasonable self-control would not have driven off in such a manner, but would have taken another option, such as calling the police from the car. There was no imminent or apparent risk to either Saskia or Ms Hoey apart from that which Ms Hoey was not prepared to accept, being the removal of Saskia from the car. Even then there was no suggestion that Saskia was to be harmed; rather it was a situation that Ms Hoey in herself could not accept or allow.
- [64]Ms Hoey conceded in cross-examination that other actions were open and it is my view of her evidence that she was just not prepared to accept the consequences of those alternatives, as that would have left Mr Burger effectively in control of Saskia. I consider this to be especially so where Ms Hoey had been told only that afternoon when talking to police that a Court order was necessary for a custody arrangement (Exhibit 7 para 6) so Ms Hoey knew that the police were not going to enforce the return of Saskia to her if Mr Burger stepped in.
Verdict
- [65]I find Ms Hoey guilty of the charge of dangerous operation of a vehicle on 10 April 2017 at Airlie Beach for the reasons set out above. The prosecution has satisfied the burden of proof both with respect to the charge and of negativing the defence of sudden or extraordinary emergency.
- [66]A number of issues will arise with respect to penalty and consequential matters. I make the following findings of fact about the altercation in the presence of Saskia as I will need the parties to make further submissions:
- [67]After hearing all of the evidence I have no doubt that 4 year old Saskia was buckled into her car seat in the middle of a loud and escalating argument between her parents. She could not avoid the situation and had no capacity to move away. Even worse, her parents then engaged in a limited physical altercation involving her seat buckles, with Ms Hoey reaching back from the front driver’s seat and Mr Burger reaching in through the rear passenger door. Hands grabbed and clashed and at some point Ms Hoey cries out in pain and says that she is being hurt. It is no wonder that all of the relevant witnesses agree that Saskia was distraught by this time. Both Mr Burger and Ms Hoey each gave evidence that their actions were motivated by the desire to ensure Saskia’s safety or wellbeing. It is my finding rather that both parties were motivated to exercise control over each other using Saskia as the justification for their actions.
- [68]Next, this charge did not include an averment that it was ‘a domestic violence offence’. I provisionally consider that the circumstances of the offence meet the definition and I will require further submissions on whether it is open to the Court to make a declaration to this effect.
- [69]Regardless of whether the charge is to be recorded as a domestic violence offence I am satisfied that it is so for the purposes of s 42 of the Domestic and Family Violence Protection Act. I will require further submissions from all parties, including Mr Burger, with respect to whether to make a Protection Order naming Ms Hoey as the Respondent for the protection of Mr Burger and Saskia. I am aware from the evidence that there is already a cross order in place which will enliven the relevant provisions of the aforementioned Act. I ask the parties to pay particular attention in their submissions to the needs of Saskia given my findings above.
- [70]Finally, submissions are required with respect to penalty, as per normal practice. I am content to receive all submissions verbally on the next occasion, although written submissions may be tendered.