Knight v Raddie

[2013] QMC 15

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Knight v Raddie [2013] QMC 15

PARTIES:

RAYMOND BRIAN KNIGHT

(complainant)

v

NIGEL EDWARD RADDIE

(defendant)

FILE NO/S:

MAG75904/13(4)

DIVISION:

Magistrates Court

PROCEEDING:

Complaint and Summons

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

18 October 2013

DELIVERED AT:

Ipswich

HEARING DATE:

27 September 2013

MAGISTRATE:

Stark RJ Acting Magistrate

ORDER:

Defendant is convicted

CATCHWORDS:

TRAFFIC LAW – OFFENCES – speeding – exceeding the speed limit in a school speed zone - exceeding the speed limit in a speed zone on a road not signed - whether a mistake of the speed in a speed zone is a mistake of fact or a mistake of law

Criminal Code, s 22, s 24
Transport Operations (Road Use Management – Road Rules) Regulation 2009, s 20, s 23, s 342

Binskin v Kangaroo Transport Pty Ltd (1990) 12 MVR 499
Bond v Commissioner of Police [2012] QDC
Hull and Australian Postal Corporation [2013] AATA 635
Kozyriski v Hodgson[2012] WASC 421
Maybir v Bone [2005] QCA 344
Munroe v Queensland Police Service [2007] QDC 154
Olver v Commissioner of Police; Manz v Commissioner of Police [2013] QDC 9
Ostrowski v Palmer (2004) 206 ALR 422
Roads and Traffic Authority (NSW) v Barwick [2009] NSWSC 374
Roads and Traffic Authority (NSW) v O’Reilly 52 MVR 243, [2009] NSWSC 134
Townpub Pty Ltd v PJ Ryan’s Hotels Pty Ltd [2005] CCT G529-03
Valentine v Eid (1992) NSWLR 615

Whittaker v Delmina Pty Ltd [1998] VSC 175

COUNSEL:

K Allison (sergeant) for the complainant

defendant appeared on own behalf

SOLICITORS:

Police Prosecution Corps for the complainant

defendant appeared on own behalf

1. The defendant is charged by complaint:

“That on the 13^th day of November, 2012, at Sadliers Crossing in the Magistrates Court District of Ipswich in the State of Queensland he being the driver of a vehicle namely a car drove at a speed over the speed limit namely 40 kilometres per hour applying to the driver for the length of road namely Burnett Street Sadliers Crosssing where the said driver was driving at it is averred that the said car is a vehicle as defined in Schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Burnett Street is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995.”

1. The offence of speeding is provided for by section 20 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009, (the Queensland Road Rules):

“20 Obeying the speed limit

A driver must not drive at a speed over the speed limit applying to the driver for the length of road where the driver is driving.

Maximum penalty—40 penalty units.

Note—
See also the Criminal Code, section 328A (Dangerous operation of a vehicle) and sections 83 (Careless driving of motor vehicles) and 84 (Dangerous driving of vehicles (other than motor vehicles) etc.) of the Act.”

1. Section 23 provides for the speed limit in a school zone (it being alleged that the offence here occurred within a school zone):

“23 Speed limit in a school zone
(1) The speed limit applying to a driver for any length of road in a school zone is the number of kilometres per hour indicated by the number on the school zone sign on a road, or the road, into the zone.
(2) A school zone is—

(a) if there is a school zone sign and an end school zone sign, or a speed limit sign with a different number on the sign, on a road—that length of road; or
(b) if there is a school zone sign on a road that ends in a dead end and there is no sign mentioned in paragraph (a), on the length of road beginning at the sign and ending at the dead end—that length of road.”

1. The term “length of road” is defined in the dictionary in Schedule 5 as:

“length of road includes—

(a) a marked lane or a part of a marked lane; and

(b) another part of a length of road.”

Prosecution case

1. This prosecution is of a camera detected offence and accordingly the prosecution proceeded solely on the basis of a range of certificates tendered pursuant to legislation. The defendant has not issued any notice of challenge in respect to any matter, and at trial did not dispute any element of the offence. He accepts he was the driver of the motor vehicle on the road on the date and time in question. He also accepts the speed as alleged of 51 kph and he accepts that the speed limit that applied to that length of road at the relevant time was 40 kph.

1. The sole issue contested at trial was whether the defendant has raised the excuse of honest and reasonable but mistaken belief, and if raised, whether the prosecution can negative that excuse beyond reasonable doubt.

Evidence of Defendant

1. The evidence of the defendant is that he had been working as a teacher at the St Edmunds School for about 10 months as at the date of the offence. He travelled the journey he did on this day though only once a week when he had a commitment after school on Thursdays at the RAAF base. He was otherwise not familiar with the roads travelled on.

1. The journey travelled took him along Woodend Road and into a 40kph school zone which was associated with the Ipswich Grammar School. He passed what appeared to be the main entrance to the Ipswich Grammar School which was located in Woodend Road, travelled further along Woodend Road to the intersection with Burnett Street where he stopped at a set of traffic lights. He turned left into Burnett Street, which appeared to be a busier road. While the grounds of the Ipswich Grammar School also continued along Burnett Street, this consisted of a high fence and sporting ovals only, there are no buildings of the school and no entrance to the school located along Burnett Street. The closest school buildings to Burnett Street are 100 to 150 metres back along Woodend Road.

1. There was no sign in Burnett Street indicating a school zone speed limit (or in fact any speed limit). The defendant believed that in the absence of a school zone speed sign, the absence of school buildings or school entrance and by the busy nature of Burnett Street, that he was no longer travelling in a school zone. Accordingly he was travelling within what he believed was a 60 kph speed zone.

1. The defendant accepted that further back along Burnett Street, at a point before the intersection of Burnett Street and Woodend Road, there was in fact a school zone speed sign on Burnett Street indicating a 40 kph speed limit on Burnett Street for the direction of travel along Burnett Street that he had travelled. He did not though, on his route of travel, pass that sign.  

1. It was put to the defendant in cross-examination that he ought to have been familiar with school zones being a teacher himself, and ought to have known that the school zone would continue into Burnett Street. The defendant maintained his evidence, for the reasons stated above, that he believed he was no longer in a school zone.  

1. The defendant pointed out that subsequent to the offence a school zone speed sign had in fact been installed on Burnett Street after the intersection of Woodend Road. In closing submissions he referred to a document published by the Department of Transport and Main Roads entitled “School Zones” (Ex. No. 8)[1] which at 8.1 recommends that where there is a cross intersection within a school zone, that a repeater sign should be installed for the benefit of turning traffic.

   [1]Ex. 8 The document states at paragraph 2 “Background” as being a “guideline that builds on the requirements of the MUTCD; MUTCD is the Manual of Uniform Traffic Control Devices. By S. 72A of the Transport Operations (Road Use Management) Act 1995, an official traffic sign must be installed in a way specified in the MUTCD;

1. The defendant submitted that the lack of such a repeater sign at the time of the offence is a further matter which supports his contention that his belief that he was at the time of interception, travelling in a 60 kph zone, both honest and reasonable.

1. Ex No. 8 also states (at 8.1):

“A school zone is a time based linear speed zone that in installed to regulate vehicle speeds in the vicinity of schools.

While school zones would generally be installed to support facilities such as children’s or pedestrian crossings, the absence of such facilities at a school would not preclude installation of a school zone.”

1. I interpret from this statement that it is entirely possible that a school zone might not totally surround a school, but might be limited to an area around a school where there is some facility such as a crossing. Again, this is supportive of the contention of the defendant.

1. That is the evidence before the court.

Mistake of law or of fact?

1. At trial I invited submissions from both the prosecution and the defendant (who was unrepresented) on the correctness of the decision in the case of Bond v Commissioner of Police [2012] QDC [2]. I indicated to the parties that I may rule that I am constrained to follow Bond, but nevertheless invited submissions upon it.

   [2] a decision of Martin SC, DCJ, delivered at Brisbane on 4 July 2012;

1. No party sought to argue other than that the decision is correct, with the argument before the court proceeding on the basis that the excuse of mistake of fact was available to the defendant and had been fairly raised on the evidence, with the opposing contentions being as to whether or not the prosecution had negatived the excuse beyond reasonable doubt. Nevertheless, the issue raised by this case is such that it is important that some comment, which will by necessity be detailed, be made.

Section 342, Queensland Road Rules

1. The issue of whether the excuse of mistake of fact is available has been brought about by an addition of sub-section (4) to section 342 to the Queensland Road Rules:

“342 Traffic signs (except parking control signs) applying to a length of road
(1) A traffic sign (except a parking control sign) applying to a length of road and to drivers applies to a driver driving on the length of road if the driver is driving in the same direction as a driver on the road who faces the sign before passing it.
(2) A traffic sign applying to a length of road and to pedestrians applies to a pedestrian travelling on the length of road if the pedestrian is travelling in the same direction as a pedestrian on the road who faces the sign before passing it.
(3) The traffic sign applies to the driver or pedestrian even though the driver or pedestrian does not pass the sign.

Example— If a driver turns from a side road or private land onto a length of road to which a traffic sign applies, the traffic sign applies to the driver even though the driver does not pass the sign.

(4) Subsections (1) to (3) do not affect the operation of the Criminal Code, section 24.

Editor’s note—Criminal Code, section 24 (Mistake of fact)”[3]

[3] S 342, Transport Operations (Road Use Management—Road Rules) Regulation 2009; Sub-section (4) was added by the Transport Operations (Road Use Management – Road Rules) Regulation 2009 which came into operation on 12 October 2009 and repealed the former Transport Operations (Road Use Management – Road Rules) Regulation 1999. S 342 of the 1999 Regulation was identical to the current section other than for the addition of sub-section (4) and a non-substantive grammatical change.

1. This is a curious addition. Despite the Queensland Road Rules being part of a national model legislative scheme, the Queensland addition of sub-section (4) to section 342, does not appear in the national model[4], nor has it been adopted in any other State or Territory that my research has been able to find.

   [4] See Australian Road Rules February 2012 version, published by the National Road Transport Commission, Page accessed 8 October 2013;

Munroe and Bond

1. The addition of sub-section (4) appears to be a legislative response to the case of Munroe v Queensland Police Service [2007] QDC 154. Munroe involved a driver who had entered a length of road from a service road, at a point past the speed sign. The defendant had sought to raise mistake of fact at trial but the magistrate ruled that the operative mistake was a mistake of law.

1. On appeal Robertson DCJ upheld the decision of the magistrate but on different grounds:

“[7] Mr Parker, after hearing submissions from both Mr Munroe and the Police Prosecutor, rejected that submission, holding that the operative mistake in the circumstances was a mistake of law.

[8] In my view, that conclusion is probably correct. However, I am satisfied that section 342 and 343 of the Transport Operations (Road Use Management-Road Rules) Regulation 1999, by implication, excludes the operation of section 24 to a motorist in these circumstances.”

1. His Honour then went on to make further comments as to the policy reasons for the exclusion of mistake of fact by implication:

“[9]That would make sense to me because of the public policy issues which are referred to by Mr Justice Brooking in a decision of Kieran v Grant [1991] VicRp 25; (1991) 1 V.R. 321 at 323, where his Honour said (albeit in relation to a common law jurisdiction):

‘I would expect a provision of this kind to require drivers to keep within the applicable speed limit at their peril. If the defence of honest and reasonable belief were applicable, then mistakes could be of two kinds: there could be a mistake of fact, a fact bearing on whether one was in a speed zone, and there could be a mistake of fact as to the speed at which the vehicle was travelling.’

[10]In my view, the public policy issues implicit in sections 342 and 343 are for obvious reasons. If section 24 was available to drivers charged with exceeding the speed limit, then, firstly, one would imagine that the defences based on that section would be a large number indeed; and, secondly, the authorities would have to, as it were, place speed advisory signs at much more regular intervals on the road than is presently applicable, which, as a matter of public policy, would be inequitable as a use of public funds.”[5]

[5] The quotation from Keiran v Grant as to the availability of mistake of fact “bearing on whether one was in a speed zone” must now be considered in light of the decision of Ostrowski v Palmer (2004) 206 ALR 422 discussed below.

1. In Bond v Commissioner of Police the driver had failed to observe a speed sign due to what was said to be a combination of a very dark night with sleeting rain and excessively bright and blinding lights at an intersection beyond the speed sign. The magistrate at trial ruled that there was no defence open on the facts and convicted the Defendant. On appeal, it was ruled that mistake of fact was open and because it had not been considered at trial the matter was sent back to the Magistrates Court for re-trial.

1. The reasoning of Martin SC DCJ in Bond was expressed as follows:

“[9]The plain reading of s 21 of the Regulation discloses that the speed limit applying to a driver for the relevant length of road is the speed limit of 80 kilometres per hour because of the existence of the speed limit signs showing 80 kilometres per hour.

[10]That is, the relevant length of road is designated as having a speed limit of 80 kilometres per hour, only because of the existence of the signs.

[11]Consequently, if a driver honestly and reasonably but mistakenly believed that the 80 kilometres per hour speed limit signs were not in existence, it would be plainly a mistake of fact and s 24 of the Criminal Code would apply.”

1. In respect to the case of Munroe and the amendment to S 342 of the Queensland Road Rules his Honour said:

“[17]The learned Magistrate misled himself by relying upon the decision in Munroe (or similar cases). Firstly, the operative mistake in Munroe was considered to be as to the relevant speed limit. Consequently, the Judge concluded that it was probably a mistake of law. For the reasons articulated above, the operative mistake in this case is a mistake as to the existence of 80 kilometres speed limit signs and therefore it is a mistake of fact. Secondly, the Regulation has been amended subsequent to the decision in Munroe so that s 24 of the Code does now specifically apply to ss 342 and 343 of the Regulation. The decision in Munroe is irrelevant and obsolete.”

1. It should be noted that in Bond the crown had expressly argued that the defendant’s mistake was one of law. This argument was rejected.[6]

   [6] At [12];

Difficulty in reconciling Bond

1. The dilemma faced in this case is that I have great difficulty in reconciling the decision in Bond with authorities from other jurisdictions.

1. The starting point is the High Court decision of Ostrowski v Palmer (2004) 206 ALR 422. There a professional fisherman had sought advice from the appropriate government authority as to where he could lawfully fish for rock lobsters. He fished in accordance with advice provided but was in fact fishing in an unlawful area. He argued that his mistake was one of fact but the High Court held that his mistake was one of law. Relevant factually to the question posed by this case, Callinan and Heydon JJ gave the following analogy at paragraph [90]:

“Unfortunately, in the circumstances he could be no less guilty than a motorist who has done everything reasonably possible to ascertain the speed limits on a stretch of roadway along which he is to travel but having failed to do so, in one or more instances, exceeds those limits because he was unaware of them.”

1. In the context of cases involving mistakes as to the applicable speed limits, there are three single judge Supreme Court decisions from other states where a different conclusion has been reached to that in Bond: Roads and Traffic Authority (NSW) v O’Reilly 52 MVR 243, [2009] NSWSC 134 ; Roads and Traffic Authority (NSW) v Barwick [2009] NSWSC 374; Kozyriski v Hodgson[2012] WASC 421.

1. In each of these cases the driver had claimed to have made an honest and reasonable, but mistaken belief as to the speed limit that applied to the road. In each case the court rejected that argument, following Ostrowski, holding that the mistake was one of law.

1. The decision in Kozyriski v Hodgson is identical factually to Bond, in that it involves a driver not seeing an altered speed zone while driving at night. Heenan J dealt with the argument of the defendant at paragraph [35]:

“This proposed ground seeks to assert that the learned magistrate erred in his finding that the applicant was guilty of the speeding offence notwithstanding that the learned magistrate accepted that he did not see the altered speed zone while driving at night. At the most, this only amounts to a contention that the charge against the applicant should have been dismissed because he was not aware, that is, was ignorant, that the applicable speed limit at that point of the highway was 60 km per hour and not 90 km per hour. Any mistake by the applicant in this regard could only have been a mistake of law and not a mistake of fact. Therefore, no defence under s 24 of the Criminal Code based on an honest and reasonable mistake of fact could exist: Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. Consequently, this proposed ground has no prospect of success and leave to appeal in respect of it should be refused.”

1. In Roads and Traffic Authority (NSW) v O’Reilly, Schmidt AJ quoted the passage of Callinan and Heydon JJ from Ostrowski quoted above and then said:

“The example which their Honours used is exactly this case. The defendants each exceeded the speed limit which they said they were not aware of, for reasons which her Honour accepted amounted to honest and reasonable mistakes. There is no question that the defendants knew that driving above the legal limit was illegal, their only mistake was as to what the legal limit was. The plaintiff challenges whether the conclusion that there had been any honest and reasonable mistake as to the speed limit was open on the evidence. Accepting for the moment that it was, given that the elements of the offence are established when a driver drives at a speed in excess of the applicable limit, failing to observe the limit only because the defendants mistakenly believed that the limit was higher than it in fact was, amounts to an error of law, not one of fact, on their Honour’s approach.” (at paragraph [21])

1. In Roads and Traffic Authority (NSW) v Barwick an attempt to distinguish Ostrowski v Palmer was rejected:

“[18] The defendant submitted that Ostrowski was distinguishable. In that case the prohibition was created by regulation. In the present case the Australian Road Rules required, a speed limit zone be established through a series of factual preconditions (Australian Road Rules 21, 315 - 316, 322). Each of these requirements was a factual matter and a mistaken belief as to any of them was a mistake of fact. This was to be distinguished from the situation where the conduct was proscribed by a regulation or a gazette in which case the error would be one of law and the defence of honest and reasonable mistake would not be available.

[19] In the present case the speed limit was created by the presence of the 60 km/h speed sign facing northbound traffic and located 229 metres south of the intersection (Australian Road Rule 21). That speed zone continued until the 70 km speed sign north of the speed camera was reached (Australian Road Rule 21.3). The speed limit was validly created for that length of the roadway and was binding on the defendant, even if, as appeared from the defendant’s evidence, she had not driven previously on that section of the road (see Australian Road Rule 342).

[20] The speed limit was validly created, the contrary was not argued. Once created the plaintiff was bound by that speed limit. Her mistake was one of law.”

1. In Queensland, the only higher authority I have been able to locate which touches on the issue is Maybir v Bone [2005] QCA 344. There, while determining the case on the basis upon which it was argued below and finding that the mistake claimed by the defendant was not reasonable (in that the defendant had knowledge of the speed sign that was obscured), Jerrard JA had this to say:

“[5] The learned Magistrate treated Mr Maybir as having argued a defence of mistake of fact, based on Mr Maybir’s statement on oath that he had believed that the applicable speed limit was 70 kph, a belief apparently based on the fact that the sign had been obscured, the speed limit in the preceding stretch of road was 70 kph; and the difficulty in remembering the applicable limit from one stretch of roadway to another.^[4]”

1. The footnote continues:

“That approach may have been generous to Mr Maybir, in view of the decision in Ostrowski v Palmer [2004] HCA 30; (2004) 206 ALR 422 at [16] and [90]; but the respondent has not challenged the proposition that a defence of mistake of fact was available if, due to obstruction of the sign, Mr Maybir was led to believe the applicable limit was still 70 kph.”

Discussion

1. I would firstly make one further comment on section 342 of the Queensland Road Rules. The section has not been substantively changed by the addition of sub-section (4). The preceding words of the section remain unchanged. The plain words of sub-sections (1) to (3) still impliedly exclude the operation of the excuse of mistake of fact under section 24 of the Criminal Code. However, now, sub-section (4) declares that the preceding words do not affect its operation. This is an awkward result.

1. If the authorities from other jurisdictions referred to above applying Ostrowski in traffic speed sign cases are correct it is also a result without meaning. If any mistaken belief as to the applicable speed limit is a mistake of law, then there is no opportunity for sub-section (4) to have any effect. A declaration that the provision does not affect the operation of section 24 of the Criminal Code does not convert what is otherwise a mistake of law into a mistake of fact.

1. It also cannot be that the same or very similar sets of facts applying a national model legislative scheme can give rise to the application of mistake of fact in Queensland, but not in New South Wales or in Western Australia. The cases referred to above from those jurisdictions cannot be accommodated to stand beside the decision in Bond. In my view section 342(4) does not affect this.

Is Bond binding?

1. The comments referred to above in Maybir v Bone, the only Queensland decision able to be located which speaks to the issue, are obiter dicta. The decisions from single judges of interstate Supreme Courts are to be afforded respect but can only be persuasive authority and are not binding on this court.

1. It could be perhaps argued that the decision in Bond is a decision made per incuriam in that it makes no reference to the decision of Ostrowski v Palmer. However, Ostrowski was dealing with a different fact situation, and while the ratio decidendi can be applied more generally, it could also be distinguished in a particular case. The analogy quoted earlier of Callinan and Heydon JJ, cannot be regarded as being part of the ratio. Bond is also the only decision that deals with section 342 of the Queensland Road Rules as it is now expressed in Queensland. Further, an argument put before the court in Bond by the respondent to that appeal that the facts gave rise to a mistake of law and not a mistake of fact, was rejected by the court.[7]

   [7] At [12];

1. In those circumstances, Bond would appear to be binding. There is authority of the District Court to the effect that the Magistrates Court is bound by decisions of the District Court: Olver v Commissioner of Police; Manz v Commissioner of Police [2013] QDC 9, at paragraph [12]:

“As magistrates are bound by decisions of District Court judges—because (a) the District Court is a court higher in the same hierarchy of courts, (b) it can correct on appeal the decisions of the Magistrates Court and (c) the accepted doctrine of precedent requires that magistrates be so bound (see Viro v The Queen [1978] HCA 9; (1978) 141 CLR 88, 93; ANI Australia Pty Ltd v Hannay [1981] QdR 598, 601-2; Binskin v Kangaroo Transport Pty Ltd (1990) 12 MVR 499, 506-7 (NSWSC)), this approach will ensure certainty of application of these important and often-encountered statutory provisions.”

1. However, this statement presents another dilemma.

1. Of the authorities cited in Olver to support the contention the only decision which directly deals with the context of inferior courts is Binskin v Kangaroo Transport Pty Ltd (1990) 12 MVR 499. In that decision of the Supreme Court of New South Wales, Maxwell J deals with the issue in holding that the Local Court is bound by decisions of the District Court. The difficulty is that in a later decision of the Supreme Court of New South Wales, Grove J considered Binskin but after a thorough analysis came to a contrary view: Valentine v Eid (1992) NSWLR 615 at 619 – 623. His Honour stated his conclusion as follows:

“…I conclude that the doctrine of stare decisis does not apply as between two inferior courts, the District Court and the Local Court, even though the former stands higher in curial gradation.

…

I emphasise that I am not suggesting that a Local Court may not be considerably advantaged by reference to a relevant judgment of the District Court and I would expect that, except on rare occasions, such judgment would be compellingly persuasive and I hold no more than that a binding precedent has not been created. I refer to Lord Goddard's statement of principle in Police Authority for Huddersfield that a judge of first instance of the High Court will follow a decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity— a principle now extended to apply to divisional courts in Britain: R v Greater Manchester Coroner; Ex Parte Tal [1985] QB 67 at 81. As comity is required between courts of equal rank, co-ordinate decision must also exist between the Local Court and District Court and a magistrate should not depart from following any decision of the District Court unless after earnest consideration and for good reason he or she became convinced that the decision was wrong.”

1. The decision in Valentine v Eid has been followed in the Supreme Court of Victoria by Hansen J in Whittaker v Delmina Pty Ltd [1998] VSC 175, holding that the Magistrates Court is not bound by the County Court in Victoria.

1. Valentine v Eid has also been applied in a Queensland context by the former Commercial and Consumer Tribunal, which held itself not to be bound by decisions of the District Court: Townpub Pty Ltd v PJ Ryan’s Hotels Pty Ltd [2005] CCT G529-03; Very recently, the Townpub decision was cited in a federal context by Deputy President Forgie of the Administrative Appeals Tribunal (AAT), in holding that the AAT was not bound by decisions of the Federal Circuit Court: Hull and Australian Postal Corporation [2013] AATA 635. In each of these contexts (in the case of the AAT, at least in some respects) decisions on appeal ran to the court found not to be binding.

1. One of the justifications for the view stated in this line of authorities is that only superior courts are the subject of a regular system of reporting in law reports. In Townpub Pty Ltd v PJ Ryans’s Hotels Pty Ltd, it was noted that the widespread availability of District Court judgements has weakened this argument (at paragraph 62). I think this is partly correct, but only partly for a number of reasons.

1. First, not all decisions of the District Court are published electronically. By way of example, the decision of Bond v Commissioner of Police has not been published electronically by the District Court.[8]

   [8] The decision is not available on the Supreme Court of Qld site, nor on Search conducted 16 October 2013;

1. Second, because the court is routinely dealing with an unrepresented party (I would think this is particularly so in the case of appeals of traffic prosecutions) the court will often not have the benefit of informed legal argument from both ends of the bar table, or the assistance of the research capability that a represented party would bring.

1. Third, as is noted in Valentine v Eid, “the formidable case load in the District Court necessarily demands frequent ex tempore judgment which does not lend itself as a source of systemic derivation of precedent”. ((1992) 27 NSWLR 615 at 621). While this is speaking of the District Court in New South Wales, I would think the same comment applies equally in Queensland.

1. All of these things compound upon each other to raise the likelihood of the court delivering decisions without reference to previous decisions of the court or of other jurisdictions on the same subject matter, and this heightens the risk of inconsistency.

1. The decision in Olver v Commissioner of Police was an attempt by his Honour Judge Koppenol to provide guidance to the Magistrates Court in this very situation of a range of inconsistent decisions of the District Court on a particular subject.[9] 

   [9] There is at least one other decision – unpublished – of the District Court not referred to in Olver which is relevant to the subject matter of that case. McNamara v Queensland Police Service, [2012] QDC, a decision of his Honour Judge Durward SC, delivered at Townsville on 31 July 2012, cited in McNamara v Queensland Police Service [2013] QCA 100 at paragraphs [11] & [12];

Findings – bound by District Court?; decision of Bond;

1. On the basis of the line of authorities that has been referred to above, I am unable to accept that this court is bound by decisions of the District Court of Queensland. I accept the position is as was stated by Grove J in Valentine v Eid. That is, except on rare occasions decisions of the District Court will be compellingly persuasive, unless after earnest consideration and for good reason the court is convinced the decision is wrong.

1. For the reasons already stated, I am so convinced that the decision in Bond is wrong. I would follow the decisions of Supreme Courts of New South Wales and of Western Australia of Roads and Traffic Authority (NSW) v O’Reilly 52 MVR 243, [2009] NSWSC 134 ; Roads and Traffic Authority (NSW) v Barwick [2009] NSWSC 374; Kozyriski v Hodgson[2012] WASC 421; each following Ostrowski v Palmer (2004) 206 ALR 422, in holding that the mistake here is not one of fact but one of law.

1. Accordingly, section 22 of the Criminal Code applies, this is a mistake of law, and ignorance of the law provides no excuse. There being no legal defence open to the Defendant, and all of the elements of the offence being admitted, it follows that he is guilty of the offence as charged. 

For completeness - if mistake of fact applied - has it been negatived?

1. For completeness, in case I am held to be wrong, I will state some reasons on the basis that section 24 of the Criminal Code is available to the Defendant. In this circumstance, it was not disputed that it has been fairly raised on the evidence by the Defendant. The question that remains is whether or not the prosecution has negatived it beyond reasonable doubt.

1. The facts of the case have been stated earlier and are not in dispute. I need not repeat them again. I find that on those facts the prosecution has not negatived beyond reasonable doubt that on the day and time in question, the Defendant honestly and reasonably believed that when he turned from Woodend Road into Burnett Street, that he had exited a school zone and was then subject to a default speed zone for a major residential road of 60 kph as opposed to a school zone limit that actually applied to the length of road along Burnett Street of 40kph. 

1. This belief is made more reasonable given that a relevant departmental publication (Ex. 8) recommends that a repeater sign to be positioned after the intersection of roads as was the case here, but that none was present on the day of the offence. Further, that subsequently such a repeater sign was in fact installed at the intersection at the location of this offence.

1. Accordingly, if section 24 of the Criminal Code is available to the Defendant, then he would be excused from criminal responsibility for driving at a speed of 51kph within the school zone applying at that location along Burnett Street.

Decision

1. The defendant is found guilty of the offence as charged. I will hear the parties on sentence.