DISTRICT COURT OF QUEENSLAND
CITATION:
Francese v Commissioner of Police [2022] QDC 91
PARTIES:
PETER FRANCESE
(appellant)V
COMMISSIONER OF POLICE
(respondent)
FILE NO/S:
BD 3386/20
DIVISION:
PROCEEDING:
ORIGINATING COURT:
Criminal
Appeal
Magistrates Court at Holland Park
DELIVERED ON:
8 April 2022 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
8 April 2022
JUDGE:
Allen QC DCJ
ORDERS:
1. The complaint is amended as per the reasons for decision.
2. The appeal is dismissed.
CATCHWORDS:
LEGISLATION:
CASES:
CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant was convicted of an offence pursuant to s 56(2)(a)(i) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 – where the appellant appeals against conviction pursuant to s 222 of the Justices Act 1886 (Qld) – whether the complaint should be amended pursuant to s 48(1)(c) of the Justices Act 1886 (Qld) – where the learned Magistrate failed to give adequate reasons – whether the prosecution has negatived an excuse pursuant to s 23(1)(a) of the Criminal Code 1899 (Qld) – whether the appeal should be allowed
Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 56
Justices Act 1886 (Qld), s 48, s 222, s 223
Criminal Code 1899 (Qld), s 23Stancombe v Commissioner of Police [2017] QDC 276
APPEARANCES:
The appellant appeared on his own behalf
L Maleckas, Office of the Director of Public Prosecutions (Qld), for the respondent
The appellant was charged by complaint and summons with an offence contrary to section 56(2)(a)(i) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (TORUM Regulation) in the following terms:
THE COMPLAINT of Laura Jane DUTTON Advisor (Prosecutions) of Queensland Police Service in the State of Queensland made this 26th day of February, 2020, before the undersigned, a Justice of the Peace for the said State, who says that on the 10th day of November, 2019, at McGregor, in the Holland Park Division of the Brisbane Magistrates Court District in the State of Queensland one Peter John FRANCESE being the driver of a vehicle namely a car on a road namely Kessels Road McGregor when approaching traffic arrows showing a red traffic arrow and with the stop line at the traffic arrows and who was turning in the direction indicated by the arrow the said driver failed to stop as near as practicable to but before reaching the said stop line and it is averred that the said car is a vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995, and it is averred that the said Kessels Road is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 10th day of November 2019 the said red traffic arrow is an official traffic signal as defined in Schedule 5 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009
The matter came on for trial in the Magistrates Court at Holland Park on 4 November 2020. The appellant pleaded not guilty to the charge.
The prosecution case consisted of documentary exhibits, including photographs taken by a red-light camera of the intersection of Kessels Road and Mains Road at MacGregor. The appellant does not dispute that one of those photographs shows the Hyundai motor vehicle he was driving at the time stopped at the intersection in a right-hand turn lane with the right-hand turn traffic signal red. The appellant does not dispute that a second photograph taken shortly afterwards shows that the Hyundai motor vehicle has moved into the intersection with its rear wheels having passed beyond the stop line and the right-hand turn traffic arrow still showing red. The appellant did not dispute such matters during the trial in the Magistrates Court, nor during the hearing of the appeal.
Whilst the appellant was not advised of his right to give evidence in the trial in the Magistrates Court and did not enter the witness box, he did make unsworn assertions from the bar table in the following terms:
You can clearly see that I’m stopped at the lights. Before the traffic cameras and everything says I failed to stop. I didn’t fail to stop because I’ve stopped. You see the green car take off, I’m still stopped. All right? Now, I don’t know – I can’t remember what happened, if I sneezed or whatever, but I – I took off, but I stopped straightaway and reversed back. And I’ve been doing traffic management for six years, so I know better not to go through a red light. And you can clearly see the brake lights on again. I’ve stopped again, I’m stopped again and reversed straight back. That’s what – that’s the only evidence I can give you. That’s what happened.
My wife, she was in the car with me at the same time, we were going to a birthday party. It was the first time on that intersection for me. I’ve seen the car take off as well. It could’ve been I’ve seen the car and just – automatic response and just took off for that split second. And it was only a split second and I reversed back.
(emphasis added)
The reference to a green car is a reference to another motor vehicle shown in the photographs which is shown moving through the intersection on a green light.
The learned Magistrate accepted the appellant’s assertions that he had sneezed and only entered the intersection momentarily before reversing back. The learned Magistrate accepted that the appellant did not intend to go through a red light. The learned Magistrate concluded that that did not afford the appellant a defence and found him guilty. The learned magistrate took into account the appellant’s explanation for the events in fining him a sum less than the usual three penalty units applicable to a penalty infringement notice for the offence.
The appellant has appealed against his conviction pursuant to section 222 of the Justices Act 1886 (Qld) (Justices Act). Such an appeal is to be conducted as a rehearing on the evidence below and on any new evidence adduced with leave.[1] I am required to conduct a real review of the evidence and the learned Magistrate’s decision, and make my own determination. In order to succeed on such appeal, the appellant must establish some legal, factual or discretionary error.
[1]Justices Act 1886 (Qld), s 223.
In circumstances where the appellant had not given sworn evidence during the trial, the appellant was given leave to give evidence during the course of the hearing of the appeal. He confirmed those assertions he had made before the learned Magistrate. He gave evidence that he had stopped before the stop line at the intersection, in compliance with the right-hand turning arrow being red. He gave evidence that the other car shown in the photographs, which he had referred to as “the green car” in the Magistrates Court, was also stopped at the intersection in response to a red light. He confirmed that that vehicle had entered the intersection, travelling after the light governing its travel had turned green. He confirmed that his vehicle had crossed the stop line soon after the green car had entered the intersection. He confirmed that the right-hand turning arrow was still red when he did so. He gave evidence that he had stopped his vehicle in the position shown in the second photograph, only seconds after moving forward and, after ascertaining that it was safe to do so, had immediately afterwards reversed his vehicle back behind the stop line. He confirmed his assertions before the learned Magistrate that he had entered the intersection without intending to disobey a red light, and that he was only past the stop line momentarily, before remedying the situation by reversing back.
As to the circumstances leading to him inadvertently entering the intersection, contrary to the red turning light, the appellant sought to emphasise that he had had a sneezing fit, by reason of hay fever. He agreed in his evidence that he would have operated the brake pedal when initially approaching the stop line, that his foot would have remained on the brake pedal whilst he was stationary at the intersection, and that his foot would have had to have left the brake pedal for his car to move forward. He gave evidence that his foot must have slipped when he had his sneezing fit.
Section 56(2) of the TORUM Regulation provides as follows:
56 Stopping on a red traffic light or arrow
…
(2) The driver—
(a) must stop—
(i)if there is a stop line at or near the traffic arrows—as near as practicable to, but before reaching, the stop line; or
(ii)if there is a stop here on red arrow sign at or near the traffic arrows, but no stop line—as near as practicable to, but before reaching, the sign; or
(iii)if there is no stop line or stop here on red arrow sign at or near the traffic arrows—as near as practicable to, but before reaching, the nearest or only traffic arrows; and
(b) must not proceed until—
(i) the traffic arrows change to green or flashing yellow; or
(ii)the traffic lights show a green or flashing yellow traffic light and there is no red or yellow traffic arrow showing.
Maximum penalty—20 penalty units.
As noted at the commencement of these reasons, the appellant was charged with an offence contrary to section 56(2)(a)(i) of the TORUM Regulation. It was apparent from the evidence, that being the red light camera photographs and the appellant’s evidence, that any contravention of section 56(2) was of section 56(2)(b)(i), rather than section 56(2)(a)(i). In those circumstances, the respondent sought an amendment of the complaint, pursuant to section 48 of the Justices Act, to reflect that.
Section 48(1)(c) of the Justices Act permits an amendment of the complaint as necessary or desirable in the interests of justice, including where there is a variance between the complaint and the evidence adduced at the hearing. The appellant did not oppose such an amendment. The appellant is not prejudiced by such an amendment[2] and I consider that it is in the interests of justice that the complaint be amended to reflect the evidence.
[2]Cf Stancombe v Commissioner of Police [2017] QDC 276.
The complaint is amended as follows. The word “approaching” is deleted and replaced with the words, “stopped at”. The words, “failed to stop as near as practicable to, but before reaching the said stop line” are deleted and replaced with, “proceeded before the traffic arrows changed to green or flashing yellow”.
There were a number of errors made by the learned Magistrate in the conduct of proceedings in the Magistrates Court. I have already referred to the failure to inform the appellant of his right to give evidence. The learned Magistrate failed to consider an excuse raised pursuant to section 23(1)(a) of the Criminal Code 1899 (Qld) (Criminal Code), in light of the appellant’s evidence that he proceeded past the stop line because he was sneezing. The learned Magistrate failed to give adequate reasons for her finding that the appellant was guilty of the offence.
In circumstances where I have heard evidence from the appellant and the prosecution case consists of documentary evidence which is not contested by the appellant, public monies and the time of the appellant should not be further expended by an order that the conviction be set aside and the matter remitted to the Magistrates Court for rehearing. It is a situation where it is appropriate that I determine on the evidence before the Magistrates Court, and the evidence that I have heard during the appeal, whether or not the appellant is guilty or not guilty of the offence contrary to section 56(2)(b)(i) of the TORUM Regulation.
It is not in contest that the appellant, having been stopped at the traffic arrows showing a red traffic arrow and with a stop line at the traffic arrows, and turning right in the direction indicated by the arrow, proceeded past the stop line before the traffic arrows had changed to green or flashing yellow.
The only real question which arises is whether the prosecution has, on the evidence, negatived an excuse pursuant to section 23(1)(a) of the Criminal Code. The provision excuses a person from criminal responsibility for an act that the prosecution does not prove beyond reasonable double was a willed act. The need to prove an act was willed does not need proof of any intention or wish to cause a particular result by doing the act. What is needed to prove that an act was willed is proof of a choice consciously made to do the act. Obvious examples of acts that are not willed would include a reflex action following a painful stimulus or a spastic movement, or an act done when sleepwalking or when concussed and in a state of post-traumatic automatism. The prosecution must exclude beyond reasonable doubt the possibility that the act occurred independently of the will of the appellant. The question is whether the prosecution had excluded beyond reasonable doubt the possibility of an unwilled reflex or automatic motor action of the appellant. In this case, has the prosecution proved beyond reasonable doubt that the act of driving the motor vehicle into the intersection past the stop line was an act willed by the appellant?
I accept the appellant’s assertion that he did not intend to breach the traffic regulation and had no intention of proceeding into the intersection knowing that he was doing so contrary to a red turning signal. I do not find the appellant’s evidence that such act resulted from an unwilled act on his part because of a sneezing fit to be convincing. I find such explanation unconvincing. I consider it likely that the appellant has willingly taken his foot off the brake and placed it on the accelerator to move his vehicle over the stop line, most likely because he has reacted to the vehicle to his left moving into the intersection after it had been given a green light. I expect that it is most likely that the appellant inadvertently responded to the other vehicle moving into the intersection in the belief that his light would also have turned green. That is consistent with some of the assertions made by the appellant before the learned Magistrate. In those circumstances, I am satisfied that the prosecution has excluded any excuse pursuant to section 23(1)(a) of the Criminal Code beyond a reasonable doubt.
In those circumstances, the conclusion reached by the learned Magistrate is the correct one, and the proper course is to dismiss the appeal.