Mbuzi v Torcetti

[2007] QDC 374

DISTRICT COURT OF QUEENSLAND

CITATION:

Mbuzi v Torcetti [2007] QDC 374

PARTIES:

JOSIYAS ZIFANANA MBUZI

(Appellant)

AND

STEVEN ANDREW TORCETTI

(Respondent)

FILE NO/S:

BD273/07

DIVISION:

Criminal Appeal

PROCEEDING:

 Appeal S 222  Justice Act 1886

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2007

JUDGE:

Searles DCJ

ORDER:

ORDER

1. APPEAL DISMISSED

2. APPELLANT TO PAY THE RESPONDENT’S COSTS IN THE SUM OF $1200.

COUNSEL:

Appellant – Self Represented

Respondent – Hugerford-Symes

[1]      This is an appeal under s 222 of the Justice’ Act 1886 against a decision of the Magistrates court on 22 January 2007 whereby the appellant was convicted at the end of a contested hearing, of a breach of s 138(1) of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 which provides:

“138     Keeping off a painted island

(1)A driver must not drive on or over a single continuous line, or two parallel continuous lines, along a side of or surrounding a painted island, except as permitted under this section or under s 1394.”

[2]      The original charge preferred against the appellant was a breach of s 132(3) of the Regulation, which provides:

“132     Keeping to the left of the centre of the road or the dividing line

(1)…

(2)…

(3)A driver on a road with 2 continuous dividing lines must drive to the left of the dividing lines, except as permitted under s 134 or 139(2).

[3]      There was no defence advanced by the appellant in relation to the exculpatory provisions of either s 138(1) or 132(3).

[4]      At the close of evidence, and having regard to that evidence, the learned Magistrate exercised the power vested in him by s 48 of the Justices’ Act 1886 to amend the complaint to change the charge from one of failing to keep left of 2 continuous dividing lines (s 132(3)) Regulation 132(3) to one of “driving on or over a single continuous line along a side of or surrounding a painted island” (s 138(1)).  The amendment is a matter in issue in this appeal and more will be said of it later.

[5]      The appellant relies on the following grounds:

(1)        absolute lack of evidence

(2)        error of law

(3)        procedural unfairness

(4)        unreasonableness

(5)        lack of jurisdiction.

In the Notice of Appeal after ground five above there is a notation (see attached letter) which refers to a letter dated 24 January 2007 written by the appellant to the Chief Magistrate in which he sets out, in rather intemperate language at times, his complaints about the Magistrates’ decision.

[6]      Further in the Certificate of Readiness dated 5 June 2007 signed by the appellant he sets out the matters in issue in the appeal which in summary of these: -

(a)        Lack of evidence to substantiate the charge that the wheels of the vehicle that the defendant was driving was seen crossing over two continuous dividing lines;

(b)        An error in law on the part of…