Police v Bouwer - [2007] QMC 9

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Bouwer [2007] QMC 9

PARTIES:

POLICE

(prosecution)

v

CHRISTOPHER NICHOLAS BOUWER

(defendant)

FILE NO/S:

MAG105289/06(5)

DIVISION:

Magistrates Courts

PROCEEDING:

Charge

ORIGINATING COURT:

Magistrates Court at Southport

DELIVERED ON:

24 May 2007

DELIVERED AT:

Southport

HEARING DATE:

16 January 2007

MAGISTRATE:

Costanzo J

ORDER:

Defendant is discharged

CATCHWORDS:

TRAFFIC LAW – OFFENCES – in charge of a motor vehicle while under the influence of alcohol – whether being seated in the drivers seat but with no key constitutes being in charge of a motor vehicle

Transport Operations Road Use Management Act 1995, s 79(2)(c), s 79(6), s 124(1)(t)

Brooks against Spasovski (2004) QDC 471

COUNSEL:

SOLICITORS:

Christopher Nicholas Bouwer, is charged that on 3 June 2006, at Surfers Paradise, whilst over the general alcohol limit but under the high alcohol limit, was in charge of a motor vehicle on Salerno Street, Isle of Capri. To this charge Mr Bouwer has entered a plea of not guilty.

I heard the evidence in respect of this matter on 16 January 2007.

The burden of proof is on the prosecution. The standard of proof is beyond reasonable doubt.

The charge is brought under section 79, subsection (2), paragraph (c), of the Transport Operations Road Use Management Act 1995, which relevantly provides:

"Any person who, while a person is over the general alcohol limit but is not over the high alcohol limit:

(a) Drives a motor vehicle, tram, train or vessel, or

(b) Attempts to put in motion a motor vehicle, tram, train or vessel, or

(c) Is in charge of a motor vehicle, tram, train or vessel,

is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding three months."

Subsection (6) of that section provides for a defence of sorts, but because in this case there was uncontested evidence, which I find reliable, that the defendant was located behind the wheel in the driver's seat, that defence is not available to him, but for the purposes of my reasons, which I am currently stating, I find it necessary to refer to it. Subsection (6) reads:

"Whereupon the hearing of a complaint of an offence against subsection (2), paragraph (c), in respect of a motor vehicle, the Court is satisfied beyond reasonable doubt by evidence on oath that at the material time:

(a) The defendant, by occupying a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat of that motor vehicle, or not being in that motor vehicle by some action, had manifested an intention of refraining from driving that motor vehicle whilst the defendant was under the influence of liquor or a drug, or as the case may be, while the defendant was over the general alcohol limit, and

(b) The defendant was not under the influence of liquor or a drug to such an extent, or as the case may…

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 Police v Bouwer

Details

AGLC: Police v Bouwer [2007] QMC 9
Case: [2007] QMC 9
Decision Date: 24 May 2007

CaseChat Overview and Summary

The matter before the court involved a defendant who was found by police seated in the driver’s seat of a motor vehicle with no key in the ignition, and who was suspected to be under the influence of alcohol. The defendant was charged with being in charge of a motor vehicle while under the influence of alcohol, contrary to the relevant statute. The court had to determine whether the defendant was indeed in charge of the vehicle given the circumstances.

The primary legal issue was whether the defendant could be considered to be in charge of a motor vehicle when found seated in the driver’s seat but without a key in the ignition. The court considered whether the act of sitting in the driver’s seat alone, in the absence of other evidence, was sufficient to establish that the defendant was in charge of the vehicle. The defendant argued that without a key in the ignition and no intention to drive, they could not be considered to be in charge of the vehicle.

The court found that the mere act of sitting in the driver’s seat was not sufficient to establish that the defendant was in charge of the vehicle. The court held that being in charge of a motor vehicle implies a degree of control or responsibility over the vehicle, typically demonstrated by having the key in the ignition or an intention to drive. Given the lack of evidence that the defendant had the key or intended to drive, the court concluded that the prosecution had not proven the charge beyond reasonable doubt. Consequently, the defendant was discharged.

Orders

Orders of the court

Defendant is discharged

Background

Background to the litigation

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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:	Police v Bouwer [2007] QMC 9
PARTIES:	POLICE (prosecution) v CHRISTOPHER NICHOLAS BOUWER (defendant)
FILE NO/S:	MAG105289/06(5)
DIVISION:	Magistrates Courts
PROCEEDING:	Charge
ORIGINATING COURT:	Magistrates Court at Southport
DELIVERED ON:	24 May 2007
DELIVERED AT:	Southport
HEARING DATE:	16 January 2007
MAGISTRATE:	Costanzo J
ORDER:	Defendant is discharged
CATCHWORDS:	TRAFFIC LAW – OFFENCES – in charge of a motor vehicle while under the influence of alcohol – whether being seated in the drivers seat but with no key constitutes being in charge of a motor vehicle Transport Operations Road Use Management Act 1995, s 79(2)(c), s 79(6), s 124(1)(t) Brooks against Spasovski (2004) QDC 471
COUNSEL:
SOLICITORS: