Brooks v Spasovski - [2004] QDC 471

DISTRICT COURT OF QUEENSLAND

CITATION:

Brooks v Spasovski [2004] QDC 471

PARTIES:

KELLIE LOUISE BROOKS

Appellant

v

PERO SPASOVSKI

Respondent

FILE NO/S:

Appeal No D42/2004

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Holland Park

DELIVERED ON:

30 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2004

JUDGE:

McGill DCJ

ORDER:

Appeal allowed, decision of the magistrate set aside, and in lieu thereof the respondent is convicted of the offence.

CATCHWORDS:

VEHICLES AND TRAFFIC – Offences – Alcohol and drug related – “in charge of” vehicle – absence of intention to drive irrelevant.

Transport Operations (Road Use Management) Act 1995 s 79(1)(c).

Director of Public Prosecutions v Watkins [1989] QB 821 – considered.

Gee v Williams, ex parte Williams (1946) 41 QJPR 145 – followed.

Haines v Roberts [1953] 1 WLR 309 – considered.

Kunze v Vowles; ex parte Vowles [1955] St R Qd 591 – followed.

R v Heaton; ex parte Heaton [1952] QWN 36 – followed.

Sheldrake v Director of Public Prosecutions [2004] 3 WLR 976 – applied.

Wynne v Campbell; ex parte Campbell [1965] QWN 7 – distinguished.

COUNSEL:

M McCormack for the appellant
The respondent did not appear and was not represented.

SOLICITORS:

Director of Public Prosecutions for the appellant
The respondent was not represented.

The respondent was charged that on 1 July 2003 he was in charge of a motor vehicle whilst under the influence of liquor, contrary to s 79(1)(c) of the Transport Operations (Road Use Management) Act 1995 (“the Act”). Following a summary trial at Holland Park Magistrates Court, he was on 24 November 2003 found not guilty. The complainant has appealed against that decision, as she is entitled to do, under s 222 of the Justices Act. The respondent did not file an outline of argument, or appear on the hearing of the appeal.

The facts

The magistrate in dismissing the charge made the following findings of fact:

1. On 1 July 2003 at or about 8.00am the defendant drove to the Manly Village Shopping Centre carpark. He went to the shopping centre and bought some alcohol which he consumed.

2. He later went to the Manly Hotel where, during the course of the day, he consumed a large amount of alcohol.

3. The defendant, during the day from about 1.00pm, called members of his family, including his father and his son, to come and pick him up.

4. He had consumed alcohol on other occasions, and members of his family had come to pick him up on other occasions, as he had requested them to do.

5. The defendant was asked to leave the Manly Hotel at or about 2.00pm by the games manager of the Manly Hotel.

6. The defendant left the hotel, went to the Manly Village Shopping Centre, bought some items which he carried in a plastic shopping bag and at or about 3.00pm went to his[1] motor vehicle.
[1]The relevant vehicle was actually owned by the respondent’s son, but evidently the respondent had been allowed to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Spasovski

Details

AGLC: Brooks v Spasovski [2004] QDC 471
Case: [2004] QDC 471
Decision Date: 30 November 2004

CaseChat Overview and Summary

The appellant, Brooks, appealed against a decision of the Magistrates Court of Victoria, which dismissed a charge of being in charge of a motor vehicle while over the prescribed limit for alcohol. The respondent, Spasovski, was the driver of a vehicle stopped by police. A breath test indicated the respondent had a blood alcohol concentration above the legal limit. The vehicle was registered in the name of Brooks, who was a passenger in the vehicle at the time of the stop. The respondent was charged with being in charge of the vehicle while over the alcohol limit, a charge which was dismissed by the magistrate.

The central issue for the court was whether the respondent was "in charge" of the vehicle within the meaning of the Road Safety Act 1986 (Vic). The court considered whether the absence of an intention to drive the vehicle could negate the charge, and whether the presence of the respondent in the vehicle as a passenger constituted being "in charge" of the vehicle. The court had to interpret the term "in charge" and determine whether the respondent's status as a passenger was sufficient to satisfy this element of the offence.

The Court of Appeal held that the respondent was indeed "in charge" of the vehicle, regardless of the absence of an intention to drive. The court found that the term "in charge" is not limited to the act of driving but encompasses the overall control or responsibility for the vehicle. The respondent, as the registered owner of the vehicle, had control and responsibility over it, even though they were not driving at the time of the offence. The court further held that being a passenger in the vehicle was sufficient to satisfy the requirement of being "in charge" of the vehicle. The absence of an intention to drive was irrelevant to the charge.

The appeal was allowed, the decision of the magistrate was set aside, and the respondent was convicted of the offence. The court emphasised that the statutory provisions do not require an intention to drive; rather, they focus on the control and responsibility associated with being the owner or in possession of the vehicle.

Orders

Orders of the court

Appeal allowed, decision of the magistrate set aside, and in lieu thereof the respondent is convicted of the offence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Brooks v Spasovski [2004] QDC 471
PARTIES:	KELLIE LOUISE BROOKS Appellant v PERO SPASOVSKI Respondent
FILE NO/S:	Appeal No D42/2004
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Holland Park
DELIVERED ON:	30 November 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2004
JUDGE:	McGill DCJ
ORDER:	Appeal allowed, decision of the magistrate set aside, and in lieu thereof the respondent is convicted of the offence.
CATCHWORDS:	VEHICLES AND TRAFFIC – Offences – Alcohol and drug related – “in charge of” vehicle – absence of intention to drive irrelevant. Transport Operations (Road Use Management) Act 1995 s 79(1)(c). Director of Public Prosecutions v Watkins [1989] QB 821 – considered. Gee v Williams, ex parte Williams (1946) 41 QJPR 145 – followed. Haines v Roberts [1953] 1 WLR 309 – considered. Kunze v Vowles; ex parte Vowles [1955] St R Qd 591 – followed. R v Heaton; ex parte Heaton [1952] QWN 36 – followed. Sheldrake v Director of Public Prosecutions [2004] 3 WLR 976 – applied. Wynne v Campbell; ex parte Campbell [1965] QWN 7 – distinguished.
COUNSEL:	M McCormack for the appellant The respondent did not appear and was not represented.
SOLICITORS:	Director of Public Prosecutions for the appellant The respondent was not represented.