Mann v Sunshine Coast Regional Council

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DISTRICT COURT OF QUEENSLAND

CITATION: 

Mann v Sunshine Coast Regional Council [2017] QDC 277

PARTIES: 

JOSHUA MANN
(Appellant)

AND

SUNSHINE COAST REGIONAL COUNCIL
(Respondent)  

FILE NO/S:

1979/17

DIVISION:

Appellate

PROCEEDING:

Appeal under s 222 of the Justices Act 1886

ORIGINATING COURT: 

Magistrates Court at Caloundra

DELIVERED ON:

21 November 2017

DELIVERED AT:

Brisbane

HEARING DATE: 

10 November 2017

JUDGE:

Porter QC DCJ

ORDER:

1.   The appeal against conviction is allowed.

2.   The conviction be set aside and the complaint be dismissed.

3.   The orders for costs made at trial be set aside.

4.   The respondent be ordered to pay the appellant’s costs of the trial and of this appeal on a standard basis. 

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – WHEN APPEAL LIES – where there is an appeal against conviction –– where the construction of the definition of built up area is in dispute – whether the area where the appellant parked his vehicle satisfied the definition of a built up area properly construed – where the respondent applies to lead fresh evidence on appeal to seek to sustain the conviction on new grounds – whether the court is satisfied that there are special grounds for giving leave to adduce fresh evidence.

Legislation

Justices Act 1886 (Qld) ss222, 223
Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s 197(1)

Cases

Gallagher v The Queen (1986) 160 CLR 392

Lambert v Queensland Police Service [2017] QDC 147
Pavlovic v The Commissioner of Police [2006] QCA 134

COUNSEL:

Appellant:      W Ness

Respondent:   N Nicolson

SOLICITORS:

Respondent:   Heiner and Doyle

Introduction

  1. This is an appeal against conviction pursuant to section 222 Justices Act 1886 (Qld). On 8 May 2017, in the Caloundra Magistrates Court, the appellant, Dr Mann, was found guilty of an offence under Regulation 197(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld).  That regulation provides:

    Stopping on a path, dividing strip, nature strip, painted island or traffic island

    (1) A driver must not stop on a bicycle path, footpath, shared path or dividing strip, or a nature strip adjacent to a length of road in a built-up area, unless the driver—

    (a) stops at a place on a length of road, or in an area, to which a parking control sign applies; and

    (b) is permitted to stop at that place under this regulation.

    [Underlining added]

  2. Dr Mann was convicted of stopping on, relevantly a nature strip adjacent to a length of road in a built up area other than in the circumstances permitted by that regulation.  He was fined $91.00, no conviction was recorded, and he was ordered to pay court costs of $92.90 and the respondent’s costs of $1250.

  3. The appeal concerns construction of the definition of built-up area. That definition provides:

    built-up area, in relation to a length of road, means an area in which either of the following is present for a distance of at least 500m or, if the length…

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Details
Case
[2017] QDC 277
Decision Date

CaseChat Overview and Summary

Mann v Sunshine Coast Regional Council is an appeal against a conviction made by the Sunshine Coast Magistrates Court. The appellant, Mr. Mann, was found guilty of parking his vehicle in a built-up area, which is prohibited by the relevant local laws. The respondent, Sunshine Coast Regional Council, sought to uphold the conviction, while Mr. Mann contested the decision. The appeal raises questions about the interpretation of the term "built-up area" and whether the area where Mr. Mann parked his vehicle falls within that definition. Additionally, the respondent applied to present fresh evidence to support their case, which the appellant contested.

The primary legal issues in this case concern the interpretation of the term "built-up area" and the admissibility of fresh evidence in the appeal. The court had to determine whether the area where Mr. Mann parked his vehicle satisfied the definition of a built-up area as properly construed. Furthermore, the court had to assess the respondent's application to present fresh evidence and determine if there were special grounds for granting leave to adduce such evidence, in accordance with section 223(2) of the Justices Act 1886 (Qld).

The court found that the definition of "built-up area" was not satisfied by the area where Mr. Mann parked his vehicle. The court concluded that the area did not meet the criteria for being a built-up area, as it did not have the necessary characteristics such as continuous development or a high density of buildings. Consequently, the conviction was not supported by the evidence, and the appeal against conviction was allowed. The court also found that the respondent's application to present fresh evidence did not meet the "special grounds" required under section 223(2) of the Justices Act, and the application was denied.

The final orders of the court were that the appeal against conviction was allowed, the conviction was set aside and the complaint dismissed, the orders for costs made at trial were set aside, and the respondent was ordered to pay the appellant’s costs of the trial and of this appeal on a standard basis.

Orders

Orders of the court

1. The appeal against conviction is allowed.

2. The conviction be set aside and the complaint be dismissed.

3. The orders for costs made at trial be set aside.

4. The respondent be ordered to pay the appellant’s costs of the trial and of this appeal on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Pavlovic concerned an application for leave to appeal from a decision on an appeal to this Court under section 222 Justices Act. The learned District Court Judge had refused leave to the defendant to put fresh evidence before the Court on the appeal under section 223 Justices Act. It was contended to the Court of Appeal that the trial Judge had erred in reaching that conclusion. Dealing with that contention, the Court observed: New evidence[29] In the appeal to the District Court the applicant sought to tender new evidence. This evidence included Ms Prince's letter and what purport to be sworn statements from other persons said to have witnessed the accident. The statements were from B J Moore and R Moore. At the hearing on 14 October 2005, the learned District Court judge refused to grant leave to adduce additional evidence pursuant to s 223 of the Justices Act 1886 (Qld).[30] In explaining why leave should not be granted, the learned District Court judge cited the "three main considerations" described by Gibbs CJ in Gallagher v The Queen as being relevant to a determination of "whether a miscarriage of justice has occurred because evidence now available was not led at the trial." It is clear that the reference in s 223(2) of the Justices Act to "special grounds" indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal under s 222 of the Justices Act is "by way of rehearing on the evidence given in the proceedings before the justices". While Gallagher did not involve consideration of s 223 of the Justices Act, it is nonetheless a useful guide for the purposes of identifying the kind of "special grounds" which might be said to justify the grant of leave under s 223(2). [Footnotes omitted] The relevant passage from Gallagher referred to and applied by the Court was the following from the judgment of Gibbs CJ:The authorities disclose three main considerations which will guide a Court of Criminal Appeal in deciding whether a miscarriage of justice has occurred because evidence now available was not led at the trial. The first of these, that the conviction will not usually be set aside if the evidence relied on could with reasonable diligence have been produced by the accused at the trial, is satisfied in the present case, and need not be discussed, although it should be noted that this is not a universal and inflexible requirement: the strength of the fresh evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial. Two other matters that should be taken into consideration are whether the evidence is apparently credible (or at least capable of belief) and whether, if believed, the evidence might reasonably have led the jury to return a different verdict. Although I have stated the matters in that way, it will be seen that there has been some difference of expression, if not of opinion, in the judicial discussion of these questions. The combined effect of the two considerations was stated by Rich and Dixon JJ in Craig (1933) 49 CLR 429 at 439, as follow:“A Court of Criminal Appeal has thrown upon it some responsibility of examining the probative value of the fresh evidence. It cannot be said that a miscarriage has occurred unless the fresh evidence has cogency and plausibility as well as relevancy. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial the result ought in the minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner's guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.”[1]Perhaps no more elaborate statement of the position can usefully be made.[1] Gallagher v The Queen (1986) 160 CLR 392, 395-396.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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