Berbic v Steger

[2005] QDC 294

DISTRICT COURT OF QUEENSLAND

CITATION:

Berbic v Steger [2005] QDC 294

PARTIES:

ZLATAN BERBIC

Appellant

v

GRAHAM BRADLEY STEGER

Respondent

FILE NO/S:

D4619 of 2004; MAG-00135708/04(6)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

14 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 September 2005

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, conviction quashed, verdict of acquittal entered

CATCHWORDS:

CRIMINAL LAW – defences – emergency – test for – whether made out – unlicensed driving  

Criminal Code section 25

Bailey v Costan [1993] QCA 404 – distinguished.

M v R (1994) 181 CLR 487 – applied.

R v Free [1983] 2 Qd R 183 – applied.

R v Pius Piane [1975] PNGLR 52 – considered.

R v Warner [1980] QdR 207 – considered.

Strudwick v Russell (1989) 9 MVR 15 – distinguished.

Zuccala v R (1991) 14 MVR 466 – considered.

COUNSEL:

P.D. Sheridan for the appellant
M. Hungerford–Symes for the respondent

SOLICITORS:

Director of Public Prosecutions for the respondent

1. The appellant was charged on summons that on 8 August 2004 he drove a motor car on Pinelands Road, Sunnybank Hills when he was not the holder of a licence authorising him to drive that vehicle on that road, and was disqualified by a court from holding or obtaining a drivers licence. Following a trial he was convicted of that offence on 18 November 2004. There was no dispute that the appellant was driving a motor car on that road without a licence and while subject to disqualification, but he raised a defence under section 25 of the Criminal Code. The magistrate found the prosecution had excluded that defence beyond reasonable doubt. The appellant now appeals from that conviction.

1. The Notice of Appeal identifies the ground of appeal as simply:

“Given that the learned magistrate found that the appellant drove whilst transporting his ill passenger to hospital to receive urgent medical attention, the learned magistrate erred in law by not determining that such was an ‘extraordinary emergency’, in respect of which the appellant was not criminally responsible for the charge of driving a motor vehicle without a licence when disqualified by a court.”

The evidence

1. The magistrate accepted the evidence of the appellant’s passenger, his girlfriend, which he described as not having been challenged in any particular way:  p2.  She said that on the relevant evening she had been with the appellant at her house, and then at about 9 pm she drove them in his vehicle[1] to an internet café at Sunnybank Hills:  p29.  At about 11.30 pm she obtained a meal at a fast food outlet, which she ate back at the internet café, and stayed there with the appellant until, about an hour later, she became really sick.  She felt nausea and started vomiting.  She went to a toilet which was outside the café, presumably within the shopping centre, where she said she was throwing up for about half an hour.  She said the pain became worse and she was crying and screaming:  p30.  She…