Farag v Bone

[2009] QDC 271

[2009] QDC 271

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE RAFTER SC

No 2740 of 2008

NAGWA FARAG	Appellant
and
MERVYN KENNETH BONE	Respondent
BRISBANE ..DATE 21/07/2009
JUDGMENT

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HIS HONOUR: The appellant was tried in the Magistrates Court

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at Brisbane in respect of a charge of failing to comply with a
requirement to stop, contrary to section 60 Police Powers and
Responsibilities Act 2000. She was found guilty and fined
$450. A conviction was not recorded. The appellant was also

ordered to pay costs of Court amounting to $71.15.	10
She has appealed against the conviction on the ground that the
Magistrate erred in finding that the police had given a
requirement to stop her motor vehicle. It is also contended
that the Magistrate erred in holding that the prosecution had	20
excluded the application of section 24 Criminal Code (mistake of fact).
The facts are not in dispute. At approximately 2.40 a.m. on
27 October 2007, Constables Chalmers and Taylor were	30
performing patrols around the Story Bridge area at Kangaroo
Point. Constable Chalmers was driving the marked police
vehicle, a large white Toyota HiLux with a white cabin on the
back and a large light bar on the top. Constable Chalmers
gave evidence that the vehicle was distinctive.	40
Constable Chalmers said that he was waiting in the left lane at the traffic lights at the intersection of Deakin and Main Streets when he saw the appellant's motor vehicle pull up next
to him in the right lane. The appellant was driving a dark	50

BMW with the registration number 503-GWP. The appellant was
wearing what appeared to be evening attire. Constable
Chalmers and his partner decided to pull the appellant over in 1-2 JUDGMENT 60

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order to perform a random breath test.

Both vehicles turned left on to Main Street heading south.
Constable Chalmers positioned his vehicle behind the BMW in

the right lane. The two vehicles were the only vehicles on	10
the road at that point. The appellant indicated to turn right into River Terrace.
At that point Constable Chalmers activated the lights and
siren on the police vehicle. The police vehicle travelled	20
approximately 20 metres behind the appellant's vehicle along there was no other traffic on that part of the road.
Both vehicles proceeded along River Terrace with Constable	30
Chalmers maintaining a distance of about 20 metres between the two vehicles keeping the lights and siren on the police vehicle activated.
The appellant did not pull over until she was close to the end	40
of River Terrace having driven past Lockerbie Street, a
distance of approximately 500 metres. The appellant pulled
over on the left just after Lockerbie Street. Constable
Chalmers pulled up behind her, turning off the siren but
leaving the lights activated.	50

Constable Chalmers then reached over to grab the Alcolmeter
from the centre console. He opened his door and stepped out.
He then saw the appellant slowly pull away and drive down 1-3 JUDGMENT 60

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River Terrace which at that point turns into Leopard Street.
Constable Chalmers then re-entered the police vehicle, re-

were no other vehicles between the appellant's vehicle and the	10
police vehicle.
Both vehicles proceeded down Leopard Street across the
intersections at Vulture Street and Stanley Street and on to
the Pacific Highway for a distance of about two kilometres.	20
The traffic was very light. Constable Chalmers said that they
were proceeding at approximately the speed limit which was 90 kilometres an hour. He said that he maintained a 20 metre gap between the two vehicles and that the lights and siren on the police vehicle remained activated throughout.	30
Constable Chalmers gave evidence that the appellant had many opportunities to safely stop. Constable Chalmers moved into the middle lane and pulled alongside the appellant and
Constable Taylor made an indication to the appellant to pull	40
over.
The appellant pulled over after the Cornwall Street off-ramp
and Constable Chalmers pulled over behind her. Constable
Chalmers then had a conversation with the appellant. He said,	50
since the start of River Terrace. Did you not see us behind you?"

activated the siren and followed the appellant, again
maintaining a distance of about 20 metres from her. There

"What are you doing? We have been trying to intercept you you wanted me to pull over. I've done nothing wrong. What is the problem?" 1-4 JUDGMENT 60

Constable Chalmers then explained that he wanted to perform a	10
random breath check and a licence check. The appellant stated
that she had not been drinking and that she had a current
licence. Constable Chalmers said that the police did not know
that she had not been drinking and informed her that
information had been given to Police Communications that a	20
pursuit was occurring.
Constable Taylor then spoke to the appellant saying, "What are
you thinking? Why didn't you pull over?" The appellant
replied, "I didn't know you wanted me to pull over. I haven't	30
been drinking. I am a doctor."
Constable Taylor replied by explaining that she did not care
that the appellant was a doctor and that when the appellant
stopped and then drove off again after Constable Chalmers had	40
got out of the police vehicle, that they thought she was not going to stop.
Constable Chalmers then performed a breath test on the
appellant and asked to see her licence. Constable Taylor	50

performed a licence check. Both procedures produced no
adverse result. Constable Chalmers then explained to the
appellant that she would be receiving a ticket for failing to
stop and she became upset saying that it was unfair. 1-5 JUDGMENT 60

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Constable Chalmers then activated a recording device.

Constable Chalmers said that during the further conversation
he had with the appellant that she said that if he had wanted

her to stop he should have driven his vehicle in front of	10
hers. The appellant said that she had been living in me to stop."
In relation to the first occasion when she did in fact stop	20
along River Terrace, but did not remain stopped, the appellant said, "I thought you wanted to go past." And the police replied to the effect, "We didn't go past you. We pulled up behind you and you then took off."
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The particulars of the charge relied upon by the prosecution
are set out at page 5 of the transcript. The Prosecutor
stated, "So, really the offence probably starts - it is hard
to put a point, it probably starts from where she hasn't
remained and taken off and the blue light and siren is on -	40
then on again and it is nearly a couple of kilometres after that before they get her." Section 60, Police Powers and Responsibilities Act 2000,	50

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provides:

(1) A police officer may require the person in control of a

vehicle, other than a train or a vehicle pulled by an

animal, to stop the vehicle for a prescribed purpose. 10

(2) The person must comply with the requirement, unless the

person has a reasonable excuse.

(3) The prescribed purposes are as follows -	20
(a) for enforcing a transport Act;
(b) to check whether the vehicle or person is complying with

a transport Act; 30

(c) for monitoring or enforcing a liquor provision;

(d) for enforcing a contravention of law involving putting,

dropping and leaving litter on a public place from a	40
vehicle;

(e) to conduct a breath test or saliva test;

(f) to investigate the emission of excessive noise from -	50
(i) a motor vehicle on a road or in a public place; or

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(ii) a motorbike being driven on a place other than a

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road;

(g) to give a noise abatement direction to the person

responsible for the emission of excessive noise from

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(i) a motor vehicle on a road or in a public place; or

(ii) a motorbike being driven on a place other than a

road;

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(h) to impound a motor vehicle under chapter 4."

The Act does not specify the manner in which a police officer may direct a motorist to stop. In this regard section 60 may be contrasted with section 748 which sets out the manner in	30
which a police officer may give a driver a direction to stop. circumstances.
The means by which a police officer requires a motorist to	40
stop will depend upon the circumstances. A police vehicle driving behind another motor vehicle with lights and siren activated would be understood by most motorists as a
requirement to stop. In the circumstances of this case the
appellant did in fact stop her motor vehicle on River Terrace	50

before driving away.
The term "stop" is defined in the dictionary, schedule 6, as 1-8 JUDGMENT 60

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"stop, of a vehicle or animal, includes requiring it to remain
stationary for the time reasonably necessary to enable a

function or power under this or another Act to be exercised."

The only authority on the relevant provision to which counsel	10
drew my attention is the decision in Rodgers v. Smith, D1216 of 2002, District Court Brisbane, 28 October 2002, a judgment of Judge Forno QC. However the decision is of limited
assistance because the ruling of his Honour contains no
reasoning and the facts are a little difficult to discern.	20
The issues for determination are whether, in the circumstances
of this particular case, the police action constituted a
requirement to stop and whether the prosecution negatived the
mistake of fact defence in section 24 Criminal Code.	30
The factors that lead me to conclude that the police conduct did constitute a requirement to stop are the following:

• The police activated the lights and siren of the police 40

vehicle and travelled a distance of 20 metres behind the

appellant's vehicle.

• There was no other traffic on River Terrace.

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• After the appellant drove from River Terrace the police

once again followed her vehicle travelling 20 metres

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behind having re-activated the lights and siren of the

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police vehicle.

As I have said whether a requirement to stop is effective may
depend upon the circumstances of the case but having regard to

the absence of other traffic and the way in which the police	10
drove behind the appellant's vehicle I have reached the conclusion that their actions did, in fact, amount to a requirement to stop.
Moreover the appellant's conversation with the police after	20
she eventually stopped after the Cornwall Street off-ramp
indicates that she was aware of the presence of the police
behind her. She claimed that she was not aware that she was
required to stop. This led the Magistrate to consider section
24 Criminal Code. In this regard the Magistrate's reasoning	30
is as follows:
"The defence are not saying that she operated under mistake of
fact, but I will deal with it anyway. She made a mistake, as
I understand the course of the evidence, by driving off and in	40
the second phase not stopping. It may perhaps have been an
honest mistake, although that may be in some doubt, given that
she thought, as I said, she thought the police wanted to go
past her yet she drove off when they were still behind her
whilst their lights were still on. And I can't be satisfied	50

that it was a reasonable mistake either given that
circumstance, and that is on her own recorded version.
Then to drive for about two kilometres down the road with 1-10 JUDGMENT 60

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little or no other traffic about thinking that the police were
just wanting to go past, and which they never did at any
stage, and not pull over or stop, irrespective of whether it
is on the freeway or not, there seems, on the evidence to have

been ample opportunity for her to pull over, is not reasonable	10
in the circumstances."
In my view the Magistrate was correct to find that the
defendant was guilty and, accordingly, the appeal is
dismissed.	20

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