McNamara v Queensland Police Service

[2015] QCA 99

[2015] QCA 99

COURT OF APPEAL

MARGARET McMURDO P
GOTTERSON JA
MORRISON JA

CA No 277 of 2014
DC No 362 of 2013

McNAMARA, David Myles  Applicant

v

QUEENSLAND POLICE SERVICE  Respondent

BRISBANE

TUESDAY, 9 JUNE 2015

JUDGMENT

GOTTERSON JA:  The applicant David Myles McNamara applied for leave pursuant to s 118(3) of the District Court of Queensland Act 1968 to appeal against a decision of a judge of the District Court dismissing his appeal under s 222 of the Justices Act 1886 against his conviction for the offence of exceeding the speed limit entered on the 11th of November 2013. The conviction followed upon a hearing in the Magistrates Court.

The applicant was driving his vehicle south along the Bruce Highway heading from Townsville to the Gold Coast at about 4 and 5 am on the 16th of May 2011, and at a point 40 kilometres north of Miriam Vale, the applicant was detected by a speed camera driving at 142 kilometres per hour.  The speed limit was 100 kilometres per hour.

The applicant accepted that he was the driver and that his vehicle was detected as travelling at the excessive speed.  At both the Magistrates Court hearing and the hearing of the s 222 appeal, the applicant relied on the exception from criminal responsibility under s 25 of the Criminal Code for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.

The factual basis alleged by the applicant for the application of s 25 was that he had been tailgated by another car and that he was trying to speed away from it.  His evidence was that the car had its headlights and spotlights on.  The reflections from them in his mirrors made it difficult for him to see and to control his vehicle.  He said that initially he slowed down so that the vehicle could overtake his, but it did not.  He accelerated in order to distance his vehicle from it.

The applicant said that the other vehicle was to his rear for some five or six minutes.  He slowed several times to allow it to pass, but the opportunity to do so was not taken up.  He claimed that he was apprehensive that the occupants of the other vehicle may have intended to do him harm.  It crossed his mind that the other driver might have been trying to run him off the road, and that thought occurred to him because he said he was transporting some gold bullion to the Gold Coast to trade for cash, which he needed in order to purchase some property.

His Honour concluded, as had the magistrate, that these circumstances were not ones of sudden or extraordinary emergency such as might engage s 25.  A number of factors were influential in his reasoning to this conclusion: the driver of the other vehicle had not manifested any intention to run the appellant off the road; he had not moved his vehicle to travel in parallel with the appellant’s vehicle – I should say, the applicant’s vehicle as a first step in forcing it off the road; as well a number of options were open to the applicant, which together negatived a state of emergency which foreclosed other conduct.  The applicant could have adjusted his mirrors.  He could have adjusted his body position.  He could have pulled off the road and called the police.

The applicant’s first proposed ground of appeal is that his Honour erred in law in not finding that s 25 applied.  The applicant’s outline of argument does not demonstrate error of law in this regard.  Despite its lengthy rehearsal of factual matters, it does not reveal a misapprehension of the evidence in any significant respects, a misconstruction of s 25 or a misapplication of it to the facts.

It is a question of fact whether or not an act was done under the circumstances predicated by s 25.  His Honour found against the applicant on a matter of fact.  He was satisfied that the prosecution had discharged its onus of excluding the operation of the section.  In my view, it was clearly open for him to have been so satisfied.  This ground of appeal could not succeed.

The applicant’s other proposed ground of appeal concerned s 24 of the Criminal Code.  He claims that his Honour erred in law by misdirecting himself on the application of the section.  That provision excludes criminal responsibility to a limited extent if a person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things.  Here the applicant points to his belief that he was being run off the road.

His Honour held against the application of the section.  It was correct for him to have done so.  Even if the other driver had been attempting to run him off the road, the applicant remained criminally liable for exceeding the speed limit.  The fact that one driver may attempt to force the other driver off the road does not of itself afford the first driver with a criminal immunity for speeding.

The applicant’s reliance upon s 24 is misplaced. Even viewed from a perspective of a mistake as to the existence of a sudden or extraordinary emergency, the facts lead to a similar outcome. Section 24 limits criminal responsibility to the extent that would have prevailed if there had been such an emergency. In such an emergency, an ordinary person possessing ordinarily powers of self-control could reasonably be expected to have taken any of the options which both his Honour and the magistrate found were open to him to take in order to address it rather than speeding, thus criminal responsibility would not have been avoided pursuant to s 24. This ground of appeal too could not succeed.

This application does not involve an important point of law or question of general importance as might warrant a grant of leave to appeal, nor is a grant of leave necessary in order to correct a substantial injustice to the applicant, as might have been the case if he had proposed a viable ground of appeal.  For these reasons, I am of the view that this application for leave to appeal must be dismissed.

MORRISON JA:  I agree.

THE PRESIDENT:  I agree.  The order is the application for leave to appeal is dismissed.