Farrugia v Ross

[2004] QCA 409

SUPREME COURT OF QUEENSLAND

CITATION:

Farrugia v Ross [2004] QCA 409

PARTIES:

FARRUGIA, Andrew Simon
(applicant)
v
ROSS, Peter
(respondent)

FILE NOS:

CA No 188 of 2004
DC No 373 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Townsville

DELIVERED EX TEMPORE ON:

1 November 2004

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2004

JUDGES:

McPherson and Davies JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Application for leave to appeal dismissed
2.     Applicant to pay respondent's costs of and incidental         to the application

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY -where the applicant was convicted in the Magistrates Court of dangerous operation of a motor vehicle - where he appealed to the District Court against that conviction and his appeal was dismissed - where the applicant seeks leave to appeal against the District Court decision pursuant to s 118 District Court of Queensland Act 1967 - where the applicant relies upon the question of when the potential to cause injury amounts to a dangerous operation of a vehicle - whether this question justifies the granting of leave by this Court

Pope v Hall (1982) 30 SASR 78, discussed

COUNSEL:

G Lynham for applicant
R G Martin for respondent

SOLICITORS:

Vince Martin & Co (Innisfail) for applicant
Director of Public Prosecutions (Queensland) for respondent

McPHERSON JA:  I am going to ask Justice Davies to give the first judgment in this matter.

DAVIES JA: The applicant was convicted after a trial in the Magistrates Court at Townsville on 15 September 2003 of the offence of dangerous operation of a motor vehicle. His appeal to the District Court against a conviction pursuant to s 222 of the Justices Act 1886 was dismissed by that court on 25 May this year. He now seeks leave to appeal against that decision pursuant to s 115 of the District Court of Queensland Act 1967. This is the hearing of that application.

The facts upon which the applicant was convicted were in short compass.  His band was engaged to provide music at a function conducted by Forest Beach Surf Life Saving Club at Ingham on
5 October 2002.  There was some dispute about the standard of music played by the band and the president of the club indicated to members of the band, including the applicant, that the club was not happy with their performance and offered to pay a lesser amount than was originally agreed.  An argument then ensued.

Shortly after this, the applicant got into his car and drove it forward in what was described as a relatively confined space towards a group of people who were standing at or near the bar.  The car skidded to an abrupt halt causing one of the persons to jump out of the way in order to avoid contact.  The applicant then reversed his vehicle and drove away from the area.

The question which is said to justify the granting of leave to this Court is when the potential to cause injury amounts to dangerous operation of a motor vehicle.  More specifically, it is said that the question is, where potential injury is relied on, whether it is necessary for the prosecution to show that the degree of danger involved in the driving created, in a real sense, the potential that if something untoward did happen, the damage caused would be more, rather than less, serious.

It is difficult to see how these questions, framed in either of these ways involved some principle of law and the case which is relied on in this respect, Pope -v- Hall [1982]
30 SASR 78, involves no more, it seems to me, than a discussion of matters which were taken into account in determining whether a vehicle is being driven dangerously.

Justice Wells in that case said, in this respect that generally, there were two factors; the degree of risk that something would happen and the degree of risk of serious injury or damage if something untoward did happen.  In saying this I'm paraphrasing what his Honour said at page 79.  He went on to say that such an analysis would be suggested by the ordinary usage of language and the ordinary experience of life's accidents.  It may be said that generally this is a sound approach.  But to say this does not involve a statement of any legal principle or raise any important or novel question.  Nor is there any reason to think that the learned magistrate who tried the matter analysed it in some different way or indeed that his decision was wrong.  The case appears to have been one of reckless if not deliberately driving at or towards people in circumstances in which the vehicle skidded to a halt shortly before one of them.

Nor am I able to detect any substantial error in the reasoning of the learned District Court judge, from whose decision leave is sought to appeal or in his Honour's conclusions.

It follows that I don't think that there is any basis for granting leave to appeal to this Court and I would dismiss the application.

McPHERSON JA:  I agree.

FRYBERG J:  I agree.

McPHERSON JA:  The application for leave to appeal is dismissed.

...

McPHERSON JA:  We order that the applicant pay the respondent's costs of and incidental to the application.

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