King v Queensland Police Service

[2008] QDC 166

[2008] QDC 166

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE DURWARD SC

Appeal No D29 of 2008

RICHARD IAN CHARLES KING	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
TOWNSVILLE ..DATE 30/04/2008
ORDER

30042008 T(1)11-12/ROH(BNE) M/T TOWN4 (Durward DCJ)

HIS HONOUR: This is an appeal against the Magistrates	1
exercise of a discretion to refuse an order for costs, pursuant to section 158 of the Justices Act 1886, on a summary hearing where a charge of driving a motor vehicle whilst under the influence of liquor was dismissed.

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The ground of appeal was that the Magistrate erred in law and that his discretion miscarried. The appellant drove a motor vehicle in order to evade or escape from the attentions of a crowd of agitated persons he encountered outside a hotel

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premises where he and a companion had been drinking. He did
so because of threats of physical harm made to them and out of
fear of their being victims of unlawful assaults. He was
apprehended by police shortly after he commenced his journey.

He had a blood alcohol concentration of .167 per cent. He

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told police at the roadside the reason why he drove the motor
vehicle. This was consistent with the facts as I have
outlined. He repeated that reason subsequently at the police
station to police, however, the police, for reasons that are

not explained or otherwise are not satisfactorily explained,

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did not act upon what he had said, nor did they refer to what
he had said in the police court brief of evidence. They
should have done so. It was thus left to the appellant to
inform the Court below of that issue when he first appeared

upon a plea of guilty. That plea was rejected and a plea of

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not guilty entered, which was the proper course to take in
that Court.
30042008 T(1)11-12/ROH(BNE) M/T TOWN4 (Durward DCJ) 2 ORDER 60

The facts and circumstances clearly raised a defence of	1
extraordinary emergency, pursuant to section 25 of the dismissed the charge. However, the Magistrate refused to make an order for costs, pursuant to section 158 of the Justices

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Act. For present purposed I do not need to refer to the content of the section or to the relevant authorities. It is suffice for me to say that a Magistrates discretion with respect to costs pursuant to that section in circumstances such as existed in this case remained extant.

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The Magistrate found that "full disclosure to the police of the evidence of the defence" before "a trial date is set" was a condition precedent to a successful claim of costs, and further, that he did not or could not exercise his discretion,

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pursuant to section 158 of the Justices Act. The Magistrate,
when he made that ruling, did concede that he may have been

wrong in making that finding.

With respect, he was wrong and he erred both in law and in not

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exercising his discretion pursuant to the Act.

The appellant says that an award of costs in this case is proper for a number of reasons and I extract these from the written Outline that was provided by the appellants counsel.

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There are seven matters:

1)    The appellant raised a substantive defence prior to being charged;

3 ORDER 60

30042008 T(1)11-12/ROH(BNE) M/T TOWN4 (Durward DCJ)

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2)    The appellant did nothing after the event to bring suspicion on himself;

3)    The appellant confined the issue at trial to that of

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extraordinary emergency;

4)    The defence disclosed the telephone records to the Crown prior to the trial commencing. I add that whilst I have not referred to those previously,

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those matters were apparently relevant to the facts
and circumstances that were dealt with on the
hearing;

5)    The Crown failed to discharge its onus on the

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defence, raised prior to arrest, and the appellant
was acquitted;

6)    The arresting officer failed in her duty to disclose the defence raised by the appellant in the police

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brief to the prosecutor and to the Court; and

7)    The arresting officer failed to take appropriate steps to diligently investigate the defence and the delay thereby allowed the closed circuit television

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recording at the relevant licenced premises to be

wiped.

4 ORDER 60

30042008 T(1)11-12/ROH(BNE) M/T TOWN4 (Durward DCJ)

I add further that the police had been aware of a crowd of	1
persons, inferentially in an agitated state, gathered outside the licensed premises at the time that the defendant and his companion had left.

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In my view, in all the circumstances, the consent orders sought by the parties, the appeal having been conceded by the respondent on proper grounds, are appropriate.

I make orders in terms of the draft consent order which I

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initial and date and place with the papers.

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