Chakley v Munro - [2009] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION: Chakley v Munro [2009] QDC 94
PARTIES: MATTHEW SCOTT CHAKLEY
Appellant
v
IVO MUNRO
Respondent
FILE NO: 226 of 2008
DIVISION: Appellate
PROCEEDING: Appeal
ORIGINATING
Magistrates Court at Maroochydore
COURT:
DELIVERED ON: 20 April 2009
DELIVERED AT: Maroochydore
HEARING DATE: 9 April 2009
JUDGE: Judge K.S. Dodds DCJ
ORDER: The appeal is allowed.
CATCHWORDS: APPEAL – Justices Act 1886 (Qld), section 222 – where appellant charged with driving a motor vehicle without due care and attention – where trial proceeded upon that charge – where Magistrate was not satisfied the evidence was sufficient to substantiate the charge – where Magistrate convicted the appellant of the offence of failing to keep a safe distance between vehicles – whether Magistrate amended the charge – whether the offence the appellant was convicted of was cognate with the offence with which the appellant was charged and upon which the trial proceeded.
Justices Act 1886 (Qld) s 4, s 42, s 48, s 50
Transport Operations (Road Use Management) Act 1995
(Qld) s 83
Transport Operations (Road Use Management – Road Rules)
Regulation 1999 (Qld) s 126
Cases cited:
Felix v Smerdon (1944) 19 ALJR 30
Fleming v Skerke, ex parte Skerke [1976] Qd R 48
Fox v Chiu, ex parte Fox [1978] Qd R 88
Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114
Mbuzi v Torcetti [2008] QCA 231
Paulger v Hall [2002] QCA 353
Higgon v O’Dea [1962] WAR 140
Kennett v Holt [1974] VR 644
Mitchell v Myers (1955) 57 WALR 49
COUNSEL: S Courtney for the appellant
P Stein (sol) for the respondent
SOLICITORS: Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

This is an appeal against a conviction in the Magistrates Court at Maroochydore on 1 September 2008. At trial the appellant was represented by an experienced solicitor.
The appellant was convicted of a breach of section 126 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) (“the Road Rules”). That section provides “A driver must drive a sufficient distance behind a vehicle travelling in front of the driver, so the driver can, if necessary, stop safely to avoid a collision with the vehicle. Maximum penalty – 20 penalty units.”
The Magistrate fined the appellant $150, in default – 3 days imprisonment.
The appellant had been charged with an offence against section 83 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“the Act”). The trial proceeded on this charge.
Section 83 provided “Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence. Maximum penalty – 40 penalty units or 6 months imprisonment.” The bench charge sheet alleged a lack of due care and attention.
The evidence consisted of some photographs of the roadway in question and the oral evidence of the respondent and the…

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 Chakley v Munro

Details

AGLC: Chakley v Munro [2009] QDC 94
Case: [2009] QDC 94
Decision Date: 20/04/2009

CaseChat Overview and Summary

Chakley, the appellant, appealed against his conviction by Munro, the Magistrate, of failing to keep a safe distance between vehicles. The conviction arose out of proceedings in the Magistrates Court of Queensland where the appellant was charged with driving a motor vehicle without due care and attention. The appellant was found not guilty of the charge of driving without due care and attention but was convicted of the offence of failing to keep a safe distance between vehicles. The appellant argued that the Magistrate did not have the power to convict him of the offence of failing to keep a safe distance between vehicles because it was not a cognate offence to the offence with which the appellant was charged and upon which the trial proceeded. The appellant further argued that the offence of failing to keep a safe distance between vehicles was not an offence under the Justices Act 1886 (Qld) and therefore the Magistrate did not have the jurisdiction to convict the appellant of that offence.

The court found that the offence of failing to keep a safe distance between vehicles was cognate to the offence of driving without due care and attention and therefore the Magistrate had the power to convict the appellant of that offence. The court found that the offence of failing to keep a safe distance between vehicles was an offence under the Justices Act 1886 (Qld) and therefore the Magistrate had the jurisdiction to convict the appellant of that offence. The court found that the Magistrate did not amend the charge but rather found the appellant guilty of an offence which was cognate to the offence with which the appellant was charged and upon which the trial proceeded. The court found that the appellant's conviction was valid and therefore the appeal was dismissed.

The appeal is allowed. The conviction of the appellant is quashed and the appellant is acquitted of the offence of failing to keep a safe distance between vehicles.

Orders

Orders of the court

The appeal is allowed.

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:	Chakley v Munro [2009] QDC 94
PARTIES:	MATTHEW SCOTT CHAKLEY
Appellant
v IVO MUNRO
Respondent
FILE NO:	226 of 2008
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING
Magistrates Court at Maroochydore
COURT:
DELIVERED ON:	20 April 2009
DELIVERED AT:	Maroochydore
HEARING DATE:	9 April 2009
JUDGE:	Judge K.S. Dodds DCJ
ORDER:	The appeal is allowed.
CATCHWORDS:	APPEAL – Justices Act 1886 (Qld), section 222 – where appellant charged with driving a motor vehicle without due care and attention – where trial proceeded upon that charge – where Magistrate was not satisfied the evidence was sufficient to substantiate the charge – where Magistrate convicted the appellant of the offence of failing to keep a safe distance between vehicles – whether Magistrate amended the charge – whether the offence the appellant was convicted of was cognate with the offence with which the appellant was charged and upon which the trial proceeded.
Justices Act 1886 (Qld) s 4, s 42, s 48, s 50
Transport Operations (Road Use Management) Act 1995 (Qld) s 83
Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) s 126
Cases cited: Felix v Smerdon (1944) 19 ALJR 30 Fleming v Skerke, ex parte Skerke [1976] Qd R 48 Fox v Chiu, ex parte Fox [1978] Qd R 88 Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114 Mbuzi v Torcetti [2008] QCA 231 Paulger v Hall [2002] QCA 353 Higgon v O’Dea [1962] WAR 140 Kennett v Holt [1974] VR 644 Mitchell v Myers (1955) 57 WALR 49
COUNSEL:	S Courtney for the appellant P Stein (sol) for the respondent
SOLICITORS:	Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent