Mizikovsky v QPS - [2018] QDC 249

DISTRICT COURT OF QUEENSLAND

CITATION:

Mizikovsky v QPS [2018] QDC 249

PARTIES:

Lev Mizikovsky

(appellant)

v

Queensland Police Service

(respondent)

FILE NO/S:

1445 of 2018

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

Ex Tempore reasons given 25 October 2018

DELIVERED AT:

Brisbane

HEARING DATE:

25 October 2018

JUDGE:

Smith DCJA

ORDER:

1. The appeal is allowed.

2. The conviction is set aside.

3. The matter is remitted to the Magistrates Court at Brisbane for trial before a different Magistrate.

4. The respondent is to pay the appellant’s costs fixed in the sum of $1800 to be paid within 28 days.

CATCHWORDS:

TRAFFIC LAW- OFFENCES- Whether section 24 of the Criminal Code applies to an offence of travelling over a white line- whether considered by the Magistrate- whether Magistrate engaged in cross-examination of the appellant

EVIDENCE- JUDICIAL NOTICE- whether Magistrate entitled to take judicial notice by reason of his experience in riding motor cycles

Criminal Code 1899 (Q) s 24

Transport Operations (Road Use Management- Road Rules) Regulation 2009 (Q) ss 139, 342

Holland v Jones (1917) 23 CLR 149

Jones v National Coal Board [1957] 2 QB 55

Yuill v Yuill [1945] P 15

COUNSEL:

Mr T Ryan for the appellant

Ms L Baron for the respondent

SOLICITORS:

Anderson Fredericks Turner for the appellant

Director of Public Prosecutions for the respondent

This is an appeal against the decision of a Magistrate at Pine Rivers on the 20^th of March 2018. On that occasion, the Magistrate convicted the appellant of failing to keep left of a dividing line.

In order to succeed in such an appeal, it is usually necessary for the appellant to establish there is error. Also an appeal of this nature is by way of re-hearing and I need to consider the evidence placed before the Magistrate in deciding the matter.

The appellant was charged with the following charge:

“That on the 4^th day of December 2016 at Mount Nebo in the Magistrates Court district of Caboolture in the State of Queensland, the appellant being the driver of a vehicle, namely a motorbike, on a road namely Mount Nebo Road, Mount Nebo, the said road with a dividing line, failed to drive to the left of the dividing line on the said road and it is averred that the said motorbike is a vehicle as defined in section 15 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 and it is averred that the said Mount Nebo Road, Mount Nebo is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 4^th day of December 2016, the said dividing line is an official traffic sign as defined in schedule 4 of the Transport Operations (Road Use Management Act) 1995.”

Now, the trial proceeded before the Magistrate. A police officer, Sergeant Sweeney, was called to give evidence. He was stationary on his motorbike on the…

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.

Continue reading Mizikovsky v QPS

Details

AGLC: Mizikovsky v Queensland Police Service [2018] QDC 249
Case: [2018] QDC 249
Decision Date: 25 October 2018

CaseChat Overview and Summary

In the matter of Mizikovsky v QPS, the appellant contested a traffic offence of allegedly travelling over a white line. The case was heard and determined by the District Court of Queensland. The appellant claimed that the Magistrate erred in his handling of the case by applying section 24 of the Criminal Code to the offence and by taking judicial notice of his experience with motor cycles.

The legal issues the court needed to decide included whether section 24 of the Criminal Code applied to the offence of travelling over a white line and whether the Magistrate had correctly considered this issue. Another issue was whether the Magistrate had improperly engaged in cross-examination of the appellant, which could have influenced the outcome of the case. The court also had to consider whether the Magistrate was entitled to take judicial notice by reason of his experience in riding motor cycles.

The court found that section 24 of the Criminal Code did not apply to the offence of travelling over a white line, as it was not an offence against a statute or a statutory rule. The court also held that the Magistrate had engaged in improper cross-examination of the appellant, which had the potential to influence the outcome of the case. Furthermore, the court found that the Magistrate was not entitled to take judicial notice of his experience in riding motor cycles as it was not relevant to the issues in the case. As a result, the appeal was allowed, the conviction was set aside, and the matter was remitted to the Magistrates Court at Brisbane for trial before a different Magistrate. The respondent was also ordered to pay the appellant’s costs in the sum of $1800 to be paid within 28 days.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction is set aside.

3. The matter is remitted to the Magistrates Court at Brisbane for trial before a different Magistrate.

4. The respondent is to pay the appellant’s costs fixed in the sum of $1800 to be paid within 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Mizikovsky v QPS [2018] QDC 249
PARTIES:	Lev Mizikovsky (appellant) v Queensland Police Service (respondent)
FILE NO/S:	1445 of 2018
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	Ex Tempore reasons given 25 October 2018
DELIVERED AT:	Brisbane
HEARING DATE:	25 October 2018
JUDGE:	Smith DCJA
ORDER:	1. The appeal is allowed. 2. The conviction is set aside. 3. The matter is remitted to the Magistrates Court at Brisbane for trial before a different Magistrate. 4. The respondent is to pay the appellant’s costs fixed in the sum of $1800 to be paid within 28 days.
CATCHWORDS:	TRAFFIC LAW- OFFENCES- Whether section 24 of the Criminal Code applies to an offence of travelling over a white line- whether considered by the Magistrate- whether Magistrate engaged in cross-examination of the appellant EVIDENCE- JUDICIAL NOTICE- whether Magistrate entitled to take judicial notice by reason of his experience in riding motor cycles Criminal Code 1899 (Q) s 24 Transport Operations (Road Use Management- Road Rules) Regulation 2009 (Q) ss 139, 342 Holland v Jones (1917) 23 CLR 149 Jones v National Coal Board [1957] 2 QB 55 Yuill v Yuill [1945] P 15
COUNSEL:	Mr T Ryan for the appellant Ms L Baron for the respondent
SOLICITORS:	Anderson Fredericks Turner for the appellant Director of Public Prosecutions for the respondent