Police v Bouwer
[2007] QMC 9
•24 May 2007
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 be, was not, as indicated by the concentration of alcohol in the defendant's blood or breath, influenced by alcohol to such an extent as to be incapable of understanding what the defendant was doing, or as to be incapable of forming the intention referred to in paragraph (a), and
(c) The motor vehicle in respect of which the offence is charged was parked in such a manner as not to constitute a source of danger to other persons or other traffic, and
(d) The defendant had not previously been convicted of an offence under subsection (1), (2), (2)(a), 2(b), (2)(d) or (2)(j) within a period of one year prior to the date in respect of which the defendant is charged, the Court shall not convict the defendant of the offence charged.
So, the defendant may have been able to prove each element of that defence except for the element requiring that a defendant charged with the offence be in a compartment of the motor vehicle in respect of which the offence is charged other than the compartment containing the driving seat.
Further legislation to which I must refer includes section 124, subsection (1), paragraph (t). That section reads as follows:
"Any person who appears, acts or behaves as the driver, rider or person having the possession, custody, care or management of any vehicle, tram, train, vessel or animal, or who uses or drives, or attempts to use or drive the same, shall be presumed to be the person in charge thereof, whether the person is or is not the real person in charge, and it is immaterial that by reason of the circumstances not known to such person, it is impossible to drive or otherwise use the same."
That subsection provides for a rebuttable presumption. It is not a substantive provision but an evidentiary provision and the presumption of fact provided for may be rebutted by evidence, and that rebuttal may occur without recourse to section 79, subsection (6). See the case of Brooks against Spasovski (2004) QDC 471 at paragraph 5. I will return to that case in a moment and refer to it in some detail but before I do so I make the following observation in respect of the last part of section 124, subsection (1), paragraph (t). The last part of the section reading:
"And it is immaterial that by reason of circumstances not known to such person it is impossible to drive or otherwise use the same."
In my view, and in the absence of authority to the contrary, ipso facto it must be material amongst other things to consider whether a person is in charge, if that person does know that it is impossible to drive the relevant vehicle. Therefore, when one takes into account a person's state of knowledge, that, amongst other facts, may be sufficient to rebut the presumption provided for in that paragraph.
I refer then to Brooks and Spasovski. In that case his Honour District Court Judge McGill has made the task of any Magistrate considering this area of the law much easier because his Honour has spent a considerable deal of time and effort in that case examining the law in the United Kingdom, in Australia and in Queensland and that decision by his Honour must guide the decision in this case.
After tracing the relevant legislation as I have done, his Honour Judge McGill referred to the development of the concept of being in charge in England. I will not read all of his judgment, but relevantly at paragraph 14 of the judgment, his Honour referred to the case of Hainze and Roberts (1953) 1 Weekly Law Reports 309 at 311, where his Lordship said:
"It may be that if a man goes to a public house and leaves his car outside or in the car park and getting drunk asks a friend to look after the car for him or to take it home, he has put it in charge of somebody else. But if he has not put it in charge of somebody else, he is in charge until he does."
Judge McGill said that:
"That is an extreme example suggesting that people could only effectively avoid being in charge of a vehicle in such circumstances if they had handed over their keys to someone else, perhaps if the licensed premises had valet parking."
His Honour then traced the current position in Australia and referred to the Australian Law Reform Commission report at paragraph 16 of his judgment. He said:
"In Australia this provision has always been to some extent controversial with concern about its possible scope. In 1976 the Australian Capital Territory Bar made a submission to the Australian Law Reform Commission which was investigating the matter that the offence was unsatisfactory because a person should not be punished for anti-social actions he might perform, but only for what he in fact does.
"There was concern that persons who had nothing to do with driving might be regarded as being in charge of their cars at the relevant time but the Law Reform Commission thought it appropriate to have such an offence to permit effective police action in cases where the vehicle was stationed. It was expected however that the power would be used only to apprehend persons who were actually likely to drive and it was suggested that it should be a defence for the defendant establish that he had not driven or attempted to do so and did not intend to drive the vehicle. The commission considers that it was thoroughly undesirable that drivers be criminally liable for sleeping it off."
At paragraph 18, his Honour then referred to the defence in section 79 subsection 6 to which I have referred. His Honour stated:
"The specific statutory defence contains a number of additional elements, one of which an absence of prior conviction of a similar offence during a specified time has no rational connection with the circumstances of the incident in question. In addition, not only is the onus on the defendant but the standard of proof is beyond reasonable doubt."
It is clear that in the present case the respondent could not establish the statutory defence so it is unnecessary to consider it further. I can reflect the same sentiment in this case because, as I stated at the start, there is uncontested evidence and clear evidence that the defendant was behind the wheel in the driver's seat when located by the police. However the observations about the legislation including subsection 6 are relevant in this judgment.
At paragraph 19 his Honour said:
"Unfortunately the extreme view of Lord Goddard was adopted by the Full Court in Queensland in Kunze" - K-U-N-Z-E - "and Vowles" - V-O-W-L-E-S - "ex parte Vowles 1955, State Report Queensland 591, the passage quoted earlier from Hainze and Roberts was cited in the judgment of the Chief Justice with whom the other members of the Court agreed that page 599 in support of a proposition that the appellant was in charge of a motor vehicle at the relevant time because he had driven the motor vehicle to the place where it was and the absence of any evidence that he had handed the vehicle over to the charge of any other person. At the relevant time the vehicle which had been damaged in a collision was undriveable and the appellant was about 60 yards away from it."
His Honour continued at paragraph 20:
"This very wide doctrine is now it seems to me of doubtful authority in England and accordingly Kunze is, in my opinion, ripe for overriding in Queensland but I am not aware of any later decision of the Full Court or Court of Appeal by which it has been overruled and until that occurs I remain bound by it. I pause therefore to say, 'So do I.'"
At paragraph 21, his Honour Judge McGill continued:
"The present circumstances would any way fall within the current English exposition of the concept of being in charge of a vehicle. The respondent was at the vehicle, indeed seated in the driver's seat and was in possession of the keys to the vehicle and was in a position to drive the vehicle if he chose to do so. No other was in charge of it and the fact that he had arranged for someone else to come to take charge of it, does not mean that he was not still in charge until that happened. Accepting that an absence of intention to drive or attempt to drive is consistent with being in charge of a vehicle, a finding of the absence of that intention was not sufficient to prevent the respondent from being in charge of the vehicle."
And at paragraph 22 his Honour said:
"There are decisions were a person has been held to be in charge of a vehicle where he was exercising possession and control over it, though not for the purpose of driving it. A person in the driver's seat and in possession of the keys has generally been held to be in charge of the vehicle."
His Honour then referred to a number of passenger cases where people were held not to be in charge of the vehicle in various circumstances. His Honour gave examples of person not being in charge even though they were in immediate position to take charge or to be able to drive the vehicle and I have had regard to those cases and I have read those authorities cited by his Honour for myself, they being Wynn and Campbell ex parte Campbell 1965 Queensland Notes page 7; Cornelius and Jones 1935, 38 West Australian Law Report 62; Prier against Morgan ex parte Prier 1970 Queensland Notes page 13 and Alloy and Noble against Noble, Townsville Appeal 15 of 87 Per Wyllie DJ 9 June 1987, unreported.
Relevantly in that case, of Alloy against Noble;
"The owner of a vehicle" - his Honour said - "was being driven as a passenger in it when it was involved in an accident. The person who had been driving fled but the owner, who was thrown out of the vehicle in the accident, remained at the scene. He was held not to be in charge of the vehicle because the man who had been driving was in charge of it and the owner had not subsequently resumed charge of it. In that case the keys were left in the ignition when the driver fled."
His Honour noted at paragraph 24:
"These decisions show that a person who has been a passenger in a vehicle, even if the owner of it will not be in charge of it even if the driver has left the scene and even if the keys are in the vehicle, unless the driver has placed the passenger in charge of the vehicle which the passenger has accepted or the passenger has done something to take charge of the vehicle."
At paragraph 25 his Honour then referred to White against Wood appeal 52 of 90 decided by Boyce DCD 18 July 1990, unreported. His Honour stated paragraph 25 as follows:
"It seems to me with respect that the decision in White and Wood paid too much regard to the question of whether there was reasonable likelihood that the defendant would attempt to operate the vehicle and insufficient attention to the question of whether he had effectively divested himself of charge of the vehicle."
I stop there to raise the question whether that it stating the same test as his Honour previously referred to from the English decision of Haines and Roberts which has been accepted in Queensland by the Full Court in Queensland in Kunze and Vowles which required that the person place the vehicle in charge of someone else.His Honour, as I say, stated that in White and Wood, the Court paid insufficient attention to the question of whether he had effectively divested himself of charge of the vehicle. One can envisage situations where to divest oneself of charge of a vehicle, can be quite a different thing to actually giving charge of it to someone else.
In the case of Atkinson and Fox, appeal 69 of 1992 per Kimmins DCJ, 22 September 1992 unreported, his Honour said, "It was a case where the owner of the vehicle was in the driver's seat but without the keys which had been left in adjacent licensed premises where an employee had taken possession of them. They were apparently not left there by the owner deliberately, so this was not a case where the owner had passed charge of the vehicle to someone at the hotel."
His Honour Judge McGill continued, saying, "On that basis, the decision may be supported and though there was no analysis of principal and some of the matters listed as supporting a finding that the owner was in charge of the vehicle, do not seem to me to support that finding."
So, one issue in this case before me today, is whether the defendant must in fact, pass or hand over charge of the vehicle to someone else or whether it suffices if the facts show that he has effectively divested himself of charge of the vehicle.
A further question raised is, does he have to divest himself or can circumstances do it for him? At the end of the day, it seems to me that each case has to be decided on its own facts. However, the test for this Court to apply is not made any easier to comprehend when one has regard to the conclusion at paragraph 26 by his Honour, Judge McGill where his Honour states, "In the present case, the respondent had been in charge of the vehicle and had not returned charge of it to the owner or handed it over to any other person. He was physically present at the vehicle with the keys, and occupying the driver's seat, so that he was apparently exercising physical control over the vehicle; that he had no intention of driving it, is in my opinion, on the authorities irrelevant. What matters is that he was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person."
I underline that last sentence. His Honour said, "What matters is that he was in a position to drive the vehicle if he chose to do so without first taking charge of it from some other person."
Therefore, the test has been variously expressed but with respect, as though the onus of proof shifts to the defendant to prove affirmatively that he effectively divested himself of charge of the motor vehicle, or, that he had handed over charge of the motor vehicle to another person, or, that he was in a position to drive the vehicle if he chose to do so, without first taking charge of it from some other person.
There are several difficulties presented by these pronouncements, with respect. The ultimate onus does not shift to the defendant, unless he raises a defence under section 79 subsection 6. At most, the defendant has an evidentiary onus to raise the possibility that he was not in a position to drive the motor vehicle, or, that he had divested himself of charge of the motor vehicle, or, that he had handed over charge of the vehicle to someone else.
Secondly, each of the various pronouncements can mean entirely different things, with respect. For example, although a defendant may be in a position to attempt to drive a motor vehicle, if he chooses to do so, plus if he has not physically placed the motor vehicle in charge of another person, can he effectively divest himself only by his own act, or can it be through circumstances?
Can circumstances do it for him? That is, what if he's not proved to be in possession of the relevant car key, and at the same time, the motor vehicle has to his knowledge, one or two flat tyres? Thirdly, it is for the prosecution to negative any evidence raised either on their own case, that is, through evidence-in-chief, or in cross-examination, or which is led by the defendant, which is capable of rebutting either the presumption raised by section 124 paragraph (t), or the evidence otherwise pointing to the defendant being in charge of the vehicle.
Various cases have referred to the relevance of keys being present or absent; that is, the car key being present in the car or in the ignition. It seems clear on a review of the authorities that by itself, absence of the keys is not fatal for the prosecution. See Taylor and Honan, (2005) QDC, page 251 per Samios DCJ and Atkinson against Fox, number 69 of Appeal number 69 of 1992, per Kimmins DCJ, on 22 September 1992.
It is clear from those authorities that possession of car keys may, not necessarily must, but may be inferred from the overall facts.
Having reviewed the evidence in this case, having sat and listened to all witnesses, that is, the two police officers called for the prosecution, and the friend of the defendant called by him, having reviewed the transcript of evidence, I make the following findings of fact.
1) On 3 June 2006, the defendant drove the motor vehicle in question and blew out one, perhaps two, tyres while making a U-turn.
2) He parked the car so that it would not be a hazard and he parked the car out the front of his home. The evidence therefore points to the defendant having arrived home at this juncture.
3) He removed the key from the ignition. When the police arrived, there was no key in the ignition.
4) He called his friend, Susanne Leigh Williamson at about 4.45am to come and get him.
5) The police arrived on the scene at about 5.03am. In other words, minutes later.
6) The police located the defendant in the driver's seat and therefore the defence under subsection 6, is clearly not available.
7) The defendant admitted to the police to driving the car some one and a-half hours earlier, to having the blow-out and to parking the car outside his residence on Salerno Street on the Isle of Capri.
8) Officer Bloomfield searched the car and found a bunch of keys under the passenger side mat.
9) The car had a single car key as evidence by Williamson.
10) A car key was not identified from the bunch of keys and no key was tendered to this Court. The prosecutor did not ask any witness if he tried any of the keys in the ignition.
11) There is no evidence as to what the defendant did with the car key which was removed from the ignition. He was not questioned about it, for all we now it could be on the bunch, but the defendants witness suggests that the car has a single key and not that it does not form part of a bunch of keys and that she has borrowed the car on several occasions. For all we know he could have gone inside, having driven the vehicle some one and a-half hours earlier and waited for his friend. We simply cannot speculate. There is no evidence as to where the car key was when the police arrived. I do make this observation. To be in a position to drive in any real sense, if one chooses to do so, a person needs to have a car key and it would also be helpful if more than two tyres were inflated. In this case the defendant had arrived at his home address and he knew that the tyres, or at least one of them, were deflated.
12) The defendant made an attempt to relinquish charge or use of the vehicle by calling his friend but was still in possession of the vehicle when the police arrived before she did. It would seem extraordinary for the defendant to be found guilty of this offence simply because she was not as quick to get there as the police were.
Having considered the law and the facts in this case I am not able to be satisfied beyond a reasonable doubt that the defendant was in charge of this vehicle at that time when the police arrived. Therefore I do not need to make any findings with respect to the consumption of alcohol in the car or otherwise. In all the circumstances I find the defendant not guilty. The defendant is discharged.
0
0
1