Moores v Pearce - [2013] QDC 32

DISTRICT COURT OF QUEENSLAND

CITATION:

Moores v Pearce [2013] QDC 32

PARTIES:

TOD ANTHONY MOORES

(Appellant)

And

SHANE DARLEY PEARCE

(Respondent)

FILE NO/S:

2706/2012

DIVISION:

Appellate

PROCEEDING:

Appeal (s 222 Justices Act 1886 (Qld))

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

01 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2013

JUDGE:

Dorney QC, DCJ

ORDERS:

1.   The appeal is allowed.

2.   The conviction is set aside.

3.   The charge is dismissed.

4.   Both parties have leave to file, and serve, any submissions on costs by 4pm on 7 March 2013, unless agreed prior.

CATCHWORDS:

Criminal law – Appeal – Defence by excuse – Sudden emergency – Whether reasonably expected to act otherwise

Criminal Code 1899 (Qld), s 25
Justices Act 1886 (Qld), ss 222, 222(2)(c)

Berbic v Steger [2005] QDC 294
Johnson v The State of Western Australia (2009) 40 WAR 116
Osgood v Queensland Police Service [2010] QCA 242
R v GV [2006] QCA 394
R v Loughnan [1981] VR 443
R v Rogers (1996) 86 A Crim R 542
Riley v Fuchs [2001] QDC 085
State of Queensland v Nolan [2001] 1 Qd R 454
Tierney v Commissioner of Police [2011] QCA 327

COUNSEL:

A Macadam for the Appellant

M P LeGrand, Solicitor, for the Respondent

SOLICITORS:

Direct Access Brief from the Appellant

Queensland Police Service for the Respondent

Introduction

The following important question for the appellant in this case is whether s 25 of the Criminal Code Act 1899 (Qld) (“the Code”) was fully engaged. The learned acting Magistrate, at first instance, despite finding that the prosecution had not proved beyond reasonable doubt that the situation faced by the appellant was not a “sudden emergency”, nevertheless held that the appellant’s decision to drive to obtain Panadol (or a like medication) for a sick child – such circumstance having held to create the “situation of such an emergency” – was a reaction which was proved beyond reasonable doubt as that which was otherwise than what could reasonably be expected of an ordinary person with ordinary powers of self-control. The alleged offence occurred on 4 March 2011, at Bribie Island. The appellant was convicted and sentenced on 13 June 2012.

Principles applicable on appeal

As outlined in Tierney v Commissioner of Police,[1] such an appeal as this, pursuant to s 222 of the Justices Act 1886 (Qld), is “a rehearing on the evidence given at trial and any new evidence adduced by leave”, involving “a review of the record of proceedings below”; and, in order to succeed, the appellant “needs to show some legal, factual or discretionary error”: see Wilson AJA, with whom McMurdo P and Chesterman JA concurred: at [26]. That review necessarily requires “giving due deference and attaching a good deal of weight to the magistrate’s view”: see Osgood v Queensland Police Service,[2] quoting from cited authority.
[1] [2011] QCA 327.
[2] [2010] QCA 242 at [21].

Limited Scope of Issues

In response to questioning during argument, it was conceded by 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 Moores v Pearce

Details

AGLC: Moores v Pearce [2013] QDC 32
Case: [2013] QDC 32
Decision Date: 01 March 2013

CaseChat Overview and Summary

Moores v Pearce was an appeal by the defendant against a conviction in the Local Court of New South Wales. The defendant, Pearce, was convicted of a traffic offence. The dispute centred on the adequacy of the defence of sudden emergency, which Pearce raised to excuse his breach of traffic regulations. Pearce argued that he was faced with an unforeseeable situation that necessitated a sudden and urgent action, which led to the traffic offence.

The legal issue before the court was whether the defence of sudden emergency was properly available to Pearce, given the circumstances of the case. The court was required to determine if Pearce could reasonably have expected to act differently under the sudden and unforeseen circumstances he claimed to have faced. The court also needed to consider whether the defence of sudden emergency was applicable to traffic offences of this nature.

The court found that Pearce's defence of sudden emergency was not properly available to him under the circumstances. The court held that Pearce had not demonstrated that he was faced with an unforeseeable situation that required a sudden and urgent action. Furthermore, the court found that Pearce could reasonably have expected to act differently, given the nature of the traffic regulations and the circumstances of the offence. As a result, the court held that the defence of sudden emergency did not apply, and the conviction was not properly supported by the evidence. The appeal was allowed, and the conviction was set aside. The charge was dismissed, and the parties were granted leave to file and serve any submissions on costs by the specified date.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction is set aside.

3. The charge is dismissed.

4. Both parties have leave to file, and serve, any submissions on costs by 4pm on 7 March 2013, unless agreed prior.

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:	Moores v Pearce [2013] QDC 32
PARTIES:	TOD ANTHONY MOORES (Appellant) And SHANE DARLEY PEARCE (Respondent)
FILE NO/S:	2706/2012
DIVISION:	Appellate
PROCEEDING:	Appeal (s 222 Justices Act 1886 (Qld))
ORIGINATING COURT:	Magistrates Court, Caboolture
DELIVERED ON:	01 March 2013
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2013
JUDGE:	Dorney QC, DCJ
ORDERS:	1. The appeal is allowed. 2. The conviction is set aside. 3. The charge is dismissed. 4. Both parties have leave to file, and serve, any submissions on costs by 4pm on 7 March 2013, unless agreed prior.
CATCHWORDS:	Criminal law – Appeal – Defence by excuse – Sudden emergency – Whether reasonably expected to act otherwise Criminal Code 1899 (Qld), s 25 Justices Act 1886 (Qld), ss 222, 222(2)(c) Berbic v Steger [2005] QDC 294 Johnson v The State of Western Australia (2009) 40 WAR 116 Osgood v Queensland Police Service [2010] QCA 242 R v GV [2006] QCA 394 R v Loughnan [1981] VR 443 R v Rogers (1996) 86 A Crim R 542 Riley v Fuchs [2001] QDC 085 State of Queensland v Nolan [2001] 1 Qd R 454 Tierney v Commissioner of Police [2011] QCA 327
COUNSEL:	A Macadam for the Appellant M P LeGrand, Solicitor, for the Respondent
SOLICITORS:	Direct Access Brief from the Appellant Queensland Police Service for the Respondent