Kiss v Queensland Police Service

[2012] QDC 246

DISTRICT COURT OF QUEENSLAND

CITATION:

Kiss v Queensland Police Service [2012] QDC 246

PARTIES:

CSABA GEZA KISS
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D29/12

DIVISION:

Appellate jurisdiction

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

30 August 2012

DELIVERED AT:

Ipswich

HEARING DATE:

17 August 2012

JUDGE:

Bradley DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – OTHER CASES – where appellant convicted after trial of failing to stop at a stop sign – where it is uncontested that appellant did fail to stop at the stop sign – where appellant contends that it was his belief that the stop sign and line were not visible – where obligation to stop at the intersection was required by s 67 of the Transport Operations (Road Use Management Road Rules) Regulation – whether the appeal should be allowed

Justices Act 1866 (Qld) s 223

Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld) s 67

COUNSEL:

Applicant appeared in person

S Cantatore for the respondent

SOLICITORS:

Applicant appeared in person

Director of Public Prosecutions (Queensland) for the respondent

HER HONOUR:  Well, Mr Kiss, I do dismiss your appeal but I'll just read now my reasons for that decision into the record.  So, just take a seat and listen to what I have to say.

On the 23rd of November 2011, the appellant was convicted, after trial, in the Magistrates Court Ipswich, of the summary offence of failing to stop at a stop sign, he was fined $400.  The offence was committed on the 7th of December 2010 at the intersection of Walters Street and Main Street, Lowood.  The appellant represented himself at the trial, and in this appeal.

The appellant appeals against his conviction on the grounds that, "Evidence presented to Court proves stop line is not a continuous line across the traffic lane approaching a control device, at which traffic is required to stop.  Stop sign as not been erected as close as practical to the edge of the intersecting roadway".  The appellant is here apparently quoting from some legislative provisions relating to the nature, dimensions and positioning of stop lines and stop signs at intersections.

At the trial, evidence was given by each of two police officers who had set up a video camera in their police vehicle, facing the intersection, in order to monitor the traffic obeying the stop sign.  Before setting up their vehicle the police officers had driven through the intersection to ensure the stop sign was still there and to inspect the stop line marking on the road.  Senior Constable Brett noted the line was there, "But it was a bit faded".

At about 5.55 p.m. the appellant's vehicle was recorded, on the police video, travelling through the intersection slowly but without stopping.  The video was tendered in evidence at the trial and I have viewed that video.  The appellant was intercepted by the two police officers shortly after going through the intersection, and the conversation he had with Senior Constable Brett was recorded on a digital recorder.  That recording was tendered in evidence and I have listened to that.  The appellant's clear response when asked by  Senior Constable Brett if he had any reason for not stopping at the stop sign was, "I'm pretty sure I stopped".

Photographs of the intersection were tendered at the trial but these were taken only the day before the trial, some 11 months after the commission of the offence.  In her decision, the Magistrate noted that the photographs were, "Not necessarily representative of how the location looked at the time and date of the alleged offence" but that Senior Constable Brett said what was depicted was a, "Reasonable representation of how the sign looked and how the line looked". 

The other police officer, Constable Kolera's evidence was that prior to setting up their position to observe the intersection, the two police officers drove through the intersection to make sure the stop sign was, "Clear and visible to any person approaching it".  This was done approximately one hour prior to the appellant's drive through the intersection.

The appellant gave evidence that he didn't "believe" that the stop sign or the line itself was visible at the time he went through the intersection.  He believed that he had stopped but conceded that the video illustrated that he hadn't.

Section 223 of the Justices Act provides that this appeal is by way of rehearing on the evidence given in the Magistrates Court. The offence with which the appellant had been charged is created by section 67 of the Transport Operations (Road Use Management Road Rules) Regulation 2009 which provides relevantly, subsection 1, "This section applies to a driver at an intersection without traffic lights who is facing a stop sign or stop line". Subsection 2, "The driver must stop as near as practicable to but before reaching (a) the stop line; or (b) if there is no stop line, the intersection".

Here there is clear evidence from each of the police officers that the stop sign was in place and was visible to oncoming traffic.  The evidence of the police officers is that although there was a stop line, it was faded, and it's not unreasonable that the appellant failed to see the line marking on the road.  The appellant's evidence was not unequivocal that the stop sign was not visible.  He said that he didn't "believe" it was visible.  When spoken to by the police officers and asked why he hadn't stopped, the appellant replied that he was "pretty sure" he had stopped, not that he hadn't seen the sign. 

Even if the stop line could not be described as "a continuous line" and even if the stop sign was not positioned precisely, as required by the relevant regulations, which is not the evidence in any event, that does not relieve a driver of the obligation to stop at the intersection as required by section 67 of the Transport Operations (Road Use Management Road Rules) Regulation. 

The evidence is clear and ultimately uncontested that the appellant did fail to stop at the intersection.  And the evidence supports a finding beyond reasonable doubt that the stop sign was in place and visible to drivers in vehicles approaching the intersection.  The prosecution has proved, beyond reasonable doubt, that the appellant committed the offence. 

It is true, as the appellant submitted, that the police officer could have cautioned him rather than issue him with an infringement notice.   But in the circumstances the fine imposed by the Magistrate of $400, given that the maximum penalty is one of $2,000, cannot in any way be said to be excessive.  The appeal is dismissed.  Anything further, Ms Maleckas?

MS MALECKAS:  No, thank you, your Honour.

HER HONOUR:  Okay.  Thank you, Mr Kiss, you're free to go.

APPELLANT:  Thank you, your Honour.

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