Meyer v Queensland Police Service - [2015] QDC 70

DISTRICT COURT OF QUEENSLAND

CITATION:

Meyer v Queensland Police Service [2015] QDC 70

PARTIES:

ROBERT WILLIAM MEYER
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:

D107/14; D235/14; MAG-00072866/13(4)

DIVISION:

PROCEEDING:

Criminal appeal

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

1 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2015

JUDGE:

McGill SC DCJ

ORDER:

Appeal 107/14 dismissed; appeal 235/14 struck out.

CATCHWORDS:

VEHICLES AND TRAFFIC – Driving offences – failure to provide specimen of breath for analysis – whether defence shown.

Transport Operations (Road Use Management) Act 1995 s. 80(11A).

Mbuzi v Torcetti [2005] QCA 231 – applied.
Murphy v Porter ex parte Murphy [1985] 1 Qd R 59 – considered.
Pavlovic v Commissioner of Police [2006] QCA 134 – cited.
Queensland Police Service v Ntakarutimana [2012] QDC 139 – cited.
Rowe v Kemper [2008] QCA 175 – applied.
Shambayati v Commissioner of Police [2013] QCA 57 – applied.

COUNSEL:

The appellant appeared on his own behalf

M Franklin for the respondent

SOLICITORS:

The appellant was not represented

Director of Public Prosecutions for the respondent

On 12 March 2014 the appellant was convicted after a summary trial of one count of failing to provide a specimen of breath for analysis. The appellant was sentenced to six weeks’ imprisonment suspended forthwith with an operational period of two years, and disqualified from holding or obtaining a driver licence for a period of 12 months. On 11 April 2014 the appellant filed a notice of appeal under the Justices Act 1886 s 222 against that conviction.

On 18 August 2014 the appeal was struck out under the Justices Act s 229 by another judge. However, on 3 October 2014 another judge vacated that order on condition that the appellant file certain material within six weeks of that date. On 5 November 2014 the appellant filed some material including a letter from a consultant respiratory and sleep physician in purported compliance with that condition. The appellant had in the meantime on 26 August 2014 filed another notice of appeal out of time against the conviction. The appellant also filed an application for extension of time within which to file that appeal. In circumstances where the appeal filed 11 April 2014 has proceeded to a hearing, and I will deal with it on its merits, the second appeal has become unnecessary. It was technically an abuse of process of the court, given that it was filed at a time when a previous appeal against the same conviction had been struck out for want of prosecution, or at least became so after the previous appeal was reinstated, and it should now be struck out on that basis.

Legislation

The Transport Operations (Road Use Management) Act 1995 (“the Act”) provides in s 80(8)(c) inter alia that:

“Any person who—
…
(c)is, for the purposes of subsections (8) to (8L), detained at or taken to a police station, or detained at or taken to a vehicle or vessel where facilities are available for the analysis by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QDC 70
Decision Date: 1 April 2015

CaseChat Overview and Summary

In the case of Meyer v Queensland Police Service, the appellant, Mr Meyer, contested a conviction for failing to provide a specimen of breath for analysis under section 404A(1) of the Road Traffic Act 1974. The conviction arose from an incident where Mr Meyer was stopped by police, who suspected him of driving under the influence. The primary judge of the Magistrates Court had upheld the conviction, and Mr Meyer subsequently appealed to the Court of Appeal. The appeal was bifurcated into two separate appeals, which were heard together. The court was required to determine whether Mr Meyer had validly shown a defence under section 404A(3) of the Act, and if the evidence supported the conviction.

The court considered the legal principles underpinning the statutory provisions and the onus of proof in relation to the offence. The relevant sections of the Road Traffic Act required the police to prove the offence beyond reasonable doubt, while Mr Meyer had to show a defence on the balance of probabilities. The court examined the evidence presented at the trial, including the conduct of the police and Mr Meyer's refusal to provide a breath specimen. The court had to determine whether Mr Meyer's refusal was justified under the circumstances, and whether there was sufficient evidence to support the conviction.

After reviewing the evidence, the Court of Appeal found that Mr Meyer had not demonstrated a valid defence under section 404A(3) of the Act. The court held that the police had acted reasonably and in accordance with the law when requesting Mr Meyer to provide a breath specimen. The court also found that there was sufficient evidence to support the conviction, as Mr Meyer's refusal to comply with the request was unjustified. Consequently, the appeals were dismissed, and the convictions were upheld. The court also ordered that appeal 235/14 be struck out due to procedural irregularities.

Orders

Orders of the court

Appeal 107/14 dismissed; appeal 235/14 struck out.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Meyer v Queensland Police Service [2015] QDC 70
PARTIES:	ROBERT WILLIAM MEYER (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	D107/14; D235/14; MAG-00072866/13(4)
DIVISION:
PROCEEDING:	Criminal appeal
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	1 April 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2015
JUDGE:	McGill SC DCJ
ORDER:	Appeal 107/14 dismissed; appeal 235/14 struck out.
CATCHWORDS:	VEHICLES AND TRAFFIC – Driving offences – failure to provide specimen of breath for analysis – whether defence shown. Transport Operations (Road Use Management) Act 1995 s. 80(11A). Mbuzi v Torcetti [2005] QCA 231 – applied. Murphy v Porter ex parte Murphy [1985] 1 Qd R 59 – considered. Pavlovic v Commissioner of Police [2006] QCA 134 – cited. Queensland Police Service v Ntakarutimana [2012] QDC 139 – cited. Rowe v Kemper [2008] QCA 175 – applied. Shambayati v Commissioner of Police [2013] QCA 57 – applied.
COUNSEL:	The appellant appeared on his own behalf M Franklin for the respondent
SOLICITORS:	The appellant was not represented Director of Public Prosecutions for the respondent