Jovanovic v Lucas

[2009] QDC 138

DISTRICT COURT OF QUEENSLAND

CITATION:

Jovanovic v Lucas [2009] QDC 138

PARTIES:

ALAN JOVANOVIC

(Appellant)

v

STUART HAIG LUCAS

(Respondent)

FILE NO/S:

Appeal 3311/08

DIVISION:

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Cleveland

DELIVERED ON:

27 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2009

JUDGE:

Samios DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

VEHICLES AND TRAFFIC – failure to provide the specimen of breath or saliva for test (road-side) on requirement – failure to provide specimen of breath for analysis (BAS) or blood for test on requirement – findings of fact by Magistrate

Transport Operations (Road Management) Act 1995, section 80(2)

Teelow v Commissioner of Police (2009) QCA 84 applied

Flemming v Skerke ex parte Skerke (1976) Qd R 48 applied

COUNSEL:

The appellant appeared in person

Ms Litchen counsel for the respondent

SOLICITORS:

The appellant was not represented

The Director of Public Prosecutions for the respondent

1. The appellant was found guilty by the learned Magistrate of two offences.  Firstly, failing to provide a specimen of breath for a road-side test on requirement.  Secondly failing to provide a specimen of breath for analysis for test on requirement (at the police station). 

1. This is the appellant’s appeal to the District Court against the learned Magistrate’s decision. 

1. The case for the prosecution was that on 11 April 2008 at approximately 1:45am, the police were waiting to turn right from Colburn Avenue into Link Road.  The appellant was driving a utility in the opposite direction and came to a stop without any indicator on approximately 10-15m away from the police vehicle.  As the police thought this was strange, they turned right into Link Road and did a u-turn and came back to where the utility had been stopped and observed the utility turn right into a driveway and saw the tail end of the vehicle driving into the driveway.  When they reached the utility it was stationary and the appellant was getting out of the utility.  One police officer requested the appellant to provide his breath for a test.  The appellant declined saying:

“I’m in my driveway, you can’t get me”.

The appellant was observed to be steady on his feet and smelt strongly of liquor and one police officer had to reach out and grab his arm to prevent him from falling over. 

1. When asked how long it took the police to turn right into Link Road, do the u-turn and return to Colburn Avenue, Constable Lucas said it took about no more than 30 seconds.  When he was cross-examined he said it took between 30 seconds and a minute.  When Constable Harvey gave evidence she said this manoeuvre took only between 2-3 seconds if that. 

1. The prosecution also tendered a certificate pursuant to s80(15)(b) of the Transport Operations (Road Use Management) Act 1995 as to the failure of the appellant to provide a specimen of breath for analysis by means of a breath analysing instrument. 

1. The appellant gave evidence.  He did not call other evidence or produce evidence.  His case was that he was not the driver.  He said the police arrived about 5 minutes after the vehicle had been driven to the point where they saw it.  He would not name who was the driver nor produce the driver as a witness.  When asked for submissions he maintained the vehicle was parked and stationary at 3/10 Colburn Avenue.

1. The learned Magistrate accepted and preferred the evidence of Constable Harvey who she found to be a witness who was reliable.  Although it is not clear from what the learned Magistrate said it seems she accepted Constable Harvey saw the appellant’s vehicle apart from a couple of times of about two seconds on each occasion she lost sight of it.  The learned Magistrate was satisfied that there had been a chain of evidence provided about the utility and about who was driving it.  The learned Magistrate was not left in any doubt whatsoever that the appellant was the sole occupant of the vehicle as it was driven from the tennis courts along Colburn Avenue and then into the unit block.  The learned Magistrate found the prosecution had proved each and every element of the charges beyond reasonable doubt.

1. The appellant’s grounds of appeal are:

(a)        He did not drive the vehicle;

(b)        The vehicle was parked at the time on private property;

(c)        He was not in charge of the vehicle at the time of the charges laid and arrest;

(d)        Unable to produce driver at the time of hearing.

1. It is a normal attribute of an appeal by way of rehearing that “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellant court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance.  On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of appeal. (See Muir JA Teelow v Commissioner of Police 2009 QCA 84 citing Allesch v Maunz (2000) 203 CLR172 at 180-181, 181).

1. The ground of appeal that the appellant did not drive the vehicle involves a question whether that finding was open to the learned Magistrate. 

1. On the hearing of the appeal the appellant questioned by means of Exhibit 1 a photograph of the area in question how the police officers and in particular Constable Harvey could have had him under observation during the time claimed. 

1. In my opinion what the learned Magistrate said did not mean she rejected the evidence of Constable Lucas.  He saw a single male occupant in the driver’s seat and saw that he had a receding hairline.  By the time he did the u-turn and came back he saw the tail end of the vehicle driving into the driveway.  He was satisfied it was the same vehicle because he saw the same registration, the same white utility and the same male occupant getting out of driver’s side door.  That could be the chain referred to by the learned Magistrate.

1. Further, the learned Magistrate may have accepted Constable Harvey’s evidence indicating Constable Harvey kept the appellant’s vehicle under observation except for a couple of seconds on a couple of occasions despite the manoeuvres by the driver of the police vehicle, Constable Lucas.  Constable Harvey also said she saw a single male occupant in the driver’s seat of the vehicle while they were waiting to turn right and saw the appellant had already started opening the car door which caused the interior light in the cabin to come on and also saw the appellant’s bald spot on the back crown of his head.  The appellant does have a distinctive bald patch on his head. 

1. In all the circumstances I am satisfied it was open to the learned Magistrate to conclude the appellant was the driver of the vehicle.

1. The second ground of appeal that the vehicle was parked at the time on private property involves a common misconception that the law relating to drink driving does not reach into private property. 

1. Section 80(2) of the Transport Operations (Road Use Management) Act 1995 (TORUM) provides:

“(2)       Request for specimen of breath
A police officer may require any person found by the officer or who the officer reasonably suspects was during the last preceding two hours –

(a)driving a motor vehicle, tram or train on a road or elsewhere…

to provide a specimen of breath for a breath test by the person.”

1. The important consideration is that TORUM applies to a road “or elsewhere”.  In Flemming v Skerke, ex parte Skerke [1976] Qd R 48 it was held no qualification should be put on the wide but plain words “or elsewhere” and that elsewhere was a comprehensive word covering the situation where a vehicle is entering private property from a public road.

1. With respect to the second alleged offence of failing to provide a breath for analysis by a breath analysing instrument, s80(8) of TORUM provides that any person who is, for the purposes of subsections (8) to (L), detained at or taken to a police station may, while at the police station, be required by police officer to provide a specimen of the person’s breath for analysis by a breath analysing instrument.  It is an offence to fail to provide the specimen of the person’s breath for analysis by a breath analysing instrument.  (See s80(11)(d) TORUM).  However, a person may be not guilty in particular circumstances which do not apply in this case.

1. Therefore, the appellant could be guilty of these offences even though the police asked him on private property to undergo a breath test.

1. As to the ground of appeal that the appellant was not in charge of the vehicle at the time the charge is laid and arrest, this is irrelevant in light of the finding that he was the driver of the vehicle.  The prosecution did not seek to prove that he was in charge of the vehicle. 

1. As to the grounds of appeal that the appellant was unable to produce a driver at the time of the hearing that does not provide a basis for setting aside the findings that the appellant was guilty of the two offences.

1. Therefore, the learned Magistrate made no error in concluding the appellant was guilty of the offences.

1. I dismiss the appeal.