McIntyre v Townsville City Council
[2011] QDC 314
•16 December 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
McIntyre v Townsville City Council [2011] QDC 314
PARTIES:
Phillip Ernest McIntyre
(Appellant)
-v-
Townsville City Council
(Respondent)
FILE NO/S:
368/11
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court, Townsville
DELIVERED ON:
16 December 2011
DELIVERED AT:
Townsville
HEARING DATE:
6 December 2011
JUDGE:
Baulch SC DCJ
ORDER:
1. The appeal is allowed
2. Set aside orders made in the Magistrates Court on 1 April 2011
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – GENERAL PRINCIPLES
Where the Appellant was self represented – where a defence was available to the Appellant – where the defence was not addressed - where inadmissible evidence was admitted and relied upon.
COUNSEL:
P McIntyre for the Appellant
A Hockings for the Respondent
SOLICITORS:
Appellant self represented
Roberts Nehmer McKee for the Respondent
April Fools Day was not a good day for Mr Philip McIntyre. He went to court over a $1.00 parking fee and finished the day with a fine of $40.00 and an order that he pay $1,673.00 for court costs. To make matters worse he tells me that he received another parking Infringement notice while he was in court.
He thinks that he was hard done by. For the reasons which follow, I agree with him.
Philip Ernest McIntyre was convicted in the Magistrates Court at Townsville for parking his Pontiac Coupe in a parking space in the Townsville central traffic area without having paid the prescribed charge. I should, for clarity, set out the exact wording of the charge. It is as follows:
"On the twenty ninth day of July 2010, at Townsville in the Magistrates Court district of Townsville in the State of Queensland, and within the city of Townsville as constituted under the Local Government Act 2009, Philip McIntyre being the new owner of the vehicle Pontiac Coupe registered number BB76JR during the fixed hours, at the hour of 4.26 p.m. on a road within the Townsville central traffic area, namely Sturt Street between Denham Street and Stokes Street they, or their servant or agent did park that vehicle in a designated parking space without having paid the prescribed charge."
This unusual piece of legal drafting was intended I am told, to be an allegation of an offence against s 106(1)(a)(ii) of the Transport Operations (Road Use Management) Act of 1995 ("TORUM").
That section creates an offence as follows:
"(i) During the fixed hours, a person must not park a vehicle in a designated parking space
(a) unless -
(ii) the person has done what is required by an authorised system that applies in relationship to the space.
Maximum penalty 40 penalty units."
The draftsman of the charge not only departed significantly from the wording of the section that creates the offence but did so in a way which was likely to mislead and confuse because it focussed on non payment of the parking fee when, as counsel for the Council told me, the real offending was the failure to obtain and display the ticket which should be issued by the machine into which one places the relevant coins so that the Council was not interested in whether or not Mr McIntyre had paid any relevant fee. His offending was a failure to display the ticket in his vehicle in the way that is said to be required by the authorised parking system.
This was of particular importance in this case because Mr McIntyre's whole complaint about the matter is that he did put the money into a Council owned parking machine but that it did not issue him a ticket.
The offence that I mentioned above is called a paid parking offence in TORUM and it is necessary to look at s 105 to understand the way in which Council has approached the matter.
Section 105 relevantly provides:
"(2) A person may park a vehicle in a designated parking space during the fixed hours only if -
(a) the person does not park the vehicle in a space for longer than the maximum time indicated on the official traffic sign installed in relation to the space; and
(b) the person pays the parking fee for the space as prescribed immediately on parking the vehicle.
(3) The person may pay the parking fee -
(a) if a parking meter or parkatarea is installed for the space by inserting coins of the number and denomination appropriate to the parking fee in the parking meter or parkatarea; or
(b) if an authorised system applies in relation to the space - by doing what is required by the system."
Council proceed on the basis that sub section (3) provides the only method by which the parking fee may be paid.
I must say that it is not immediately apparent to me that that interpretation of the Act should be adopted, however the matter was not argued in detail before me and I will not take that matter further in view of what will follow in this judgment.
On the day in question Mr McIntyre was driving his recently acquired Pontiac Coupe in the city when it became apparent to him that the vehicle was about to run out of fuel. He was concerned that if the vehicle ran out of fuel while he was driving it he might be holding up traffic so he parked the vehicle on a designated parking space and went to a nearby hotel to use a public telephone to summon a friend to bring petrol to him. Before going to the hotel he obtained a dollar coin from his female companion and inserted it in one of the parking machines that are installed in Sturt Street for the purpose of paying such fees. He says that the machine did not issue him a ticket. He had no other money at that moment and so continued on to the hotel in the hope of summoning his friend. His friend arrived shortly afterwards but it seems that when he had the petrol he still remained for a short time in the parking space as his companion had taken the opportunity to visit a nearby Woolworths store and came back a little later.
However that may be Mr McIntyre says that at the specified time, 4.26 p.m. he was at the hotel telephoning his friend to obtain petrol.
Mr McIntyre complains that he was denied procedural fairness, natural justice, due process and the right to give all available evidence.
A perusal of the transcript reveals that some explanation of the court procedure was made to Mr McIntyre at the beginning of the case before counsel for the Council opened the case. It is true that counsel in opening the case indicated that it was the breach of the authorised system that was the matter complained of and I think it would have been apparent to an alert legally qualified opponent that the focus was not on whether or not the money was paid but whether or not the system was otherwise complied with notwithstanding the terms of the charge that had been laid.
Counsel also indicated that what he thought was the appellant's principal defence was that he had paid the money. No attempt was made to identify any other possible defences.
Mr McIntyre tells me that he had identified another possible defence pursuant to s 165 of the Transport Operations (Road Use Management) Regulations.
It is clear that s 165 of the regulations does provide an available defence in respect of the offence with which Mr McIntyre was charged. It reads in these terms:
"It is a defence to the prosecution of a driver for an offence against a provision of this part if;
…
(b) the driver stops at a particular place, or in a particular way, because the driver's vehicle is disabled, and the driver stops for no longer than is necessary for the vehicle to be moved safely to a place where the driver is permitted to park the vehicle under the Act;
… ”
Perusal of the transcript shows that this matter was not addressed at all during the hearing in the Magistrates Court. Counsel for the council says that the defence was not open because, even accepting what Mr McIntyre says, the vehicle could not be described as disabled until it actually ran out of petrol and stopped operating. That is a very narrow interpretation of the word “disabled”. I note that the Macquarie Dictionary defines disabled as “Incapacitated in some way, especially by permanent injury or disease”. I would not readily accept that the word should be construed in the narrow way contended for by the council. In my opinion, s. 165 provided a defence which was open on the facts before the court.
Mr McIntyre tells me that he had a copy of the regulation amongst documents he wished to hand to the Magistrate but the Magistrate declined to accept them and so he did not speak about it further. It seems that Mr McIntyre confused the making of submissions with the giving of evidence because he says the Magistrate having refused his document he felt unable to take this issue further.
Whether or not that is so it seems to me that the defence was at least open for argument on the material. Further it seems to me that had it been identified in the course of the hearing it might have been pursued a little further and evidence, for example from the friend who brought the petrol, might have been produced.
Sadly none of that happened. If the learned Magistrate had looked at the material that Mr McIntyre was proffering the Magistrate would have been able to tell Mr McIntyre that he didn't need to produce that sort of material as he could make submissions about the meaning of the regulation in the course of giving his address. But the case does not turn on whether or not Mr McIntyre handed the document to the Magistrate. In my opinion it turns upon the fact that the available defence was not identified or addressed.
It is well established that courts must take particular care when dealing with unrepresented litigants[1]. It seems to me that the very curious wording of the charge in this case called for explanation of its elements. Further, in my opinion, where statutory defences are available a court would be wise to refer the unrepresented litigant to the available defences and how they might be proved.
[1] Cooling v Steel 1971 2 SASR 249;Wood v Marsh 2003 WASCA 95
There is another matter of concern. The evidence relied upon to prove the fact that the relevant machines were operating correctly came from a council officer who had prepared a spread sheet from other computerised records of the council. Those other records were not produced. The spread sheet was admitted into evidence as Exhibit 5. In my view the evidence in Exhibit 5 was inadmissible as secondary evidence of the content of another computerised document which was not produced. It should have been rejected. Where unrepresented litigants are before the court both counsel appearing and the court should be alert to ensure that no inadmissible evidence is allowed as it can be expected that the unrepresented person might not understand the rules of evidence.
The council tendered computer records (Exhibit 6). Those records showed that $1.00 coins were inserted in machine STU01 at 4.14 pm on the relevant day, in machine STU02 at 4.23 and 4.30 on the relevant day, and in machine STU03 at 4.23 on the relevant day. Absent admissible evidence that the machines were working properly on the day, a conviction cannot be upheld.
Because the evidence was deficient, a defence was not identified, inadmissible material was admitted into evidence and, perhaps in part because of the unsatisfactory communication between Mr McIntyre and the learned Magistrate [2] the defendant was, in my opinion, deprived of the opportunity to argue all matters of defence and thereby deprived of the opportunity of obtaining an acquittal.
[2] See page 1-63 of the transcript
In most cases, I would remit the matter to the Magistrates Court to be further heard and determined according to law but there are particular reasons in this case why it does not seem appropriate to do so.
Mr McIntyre says he put the dollar in the machine. While Council's computer generated records may suggest that the coins did not register in the machine, it is not clear to me that they should be taken as indicating that it was not possible that Mr McIntyre put the coin into the machine. What is important in this matter is that the Magistrate was not urged to make a finding that Mr McIntyre did not put the money in the machine, because it was said that that was not essential and the learned magistrate did not make a finding on that subject. It would, on the admissible evidence, have been extremely unlikely that a finding adverse to Mr McIntyre could have been made.
That being so, when Mr McIntyre came to be sentenced, he was to be sentenced on the basis that the coin had been inserted but the ticket not displayed. The learned magistrate surely would have given consideration to ss 17 and 19 of the Penalties and Sentences Act and determined that it was not appropriate to impose any penalty.
In my opinion that is so clear that the case does not warrant further time and expense.
Accordingly I allow the appeal and set aside the orders that were made in the Magistrates Court on April Fools Day 2011. I make no other order.
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