Police v Denmeade

[2010] QDC 93

[2010] QDC 93

DISTRICT COURT
APPELLATE JURISDICTION
JUDGE PACK

POLICE	Respondent
and
PHILLIP MARK DENMEADE	Appellant
BOWEN ..DATE 12/02/2010 ORDER

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HIS HONOUR: On the 3rd of September 2009, the appellant was

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charged with one count of riding a bicycle without wearing an
approved helmet, pursuant to section 256(1) of the Transport
Operations (Road Use Management - Road Rules) Regulation of

1999. To that count he pleaded not guilty.

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The decision was delivered on the 2nd of October 2009. The appellant was neither convicted nor punished. The evidence before the Court, firstly from a police constable, Mr Dodds,

who said that he had observed the appellant riding on a

footpath without a helmet. That attracted his attention to	20
the extent that the appellant was later intercepted.
The police officer was not cross-examined as to where on what
he had described as the footpath the appellant was riding. He
did give evidence that he observed the appellant to ride	30
across an intersection. The appellant recognised this in evidence in discussion with the Magistrate, but the Magistrate appeared not to have noted that that evidence had been given.
The police officer was not cross-examined about that subject	40
by the appellant. However, I think it appropriate that this
matter should be approached upon the basis that the learned
Magistrate, from his reasons, certainly appeared to accept
that the appellant was riding adjacent to a concrete path at
relevant times.	50

There was a hedge which separated the area that had the concrete path, and there are grassed areas on either side of it. On my interpretation of the evidence, the appellant was 1-2 ORDER 60

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riding on the grassed area beside the concrete path, and it
appears that he was - on that side of it which was closer to

the hedged area. There is no contest to the proposition that the bicycle was being ridden without a helmet at the relevant time.	10
Section 13(1)(b) of the regulations to the Act provides that a
road related area includes (b) a footpath or nature strip
adjacent to a road. Subsection 2 provides inter alia.
Subsection (b) any other area that is a footpath or nature	20
strip as defined in the dictionary.
Footpath is defined in schedule 4 of the Act as follows:
"Footpath means an area open to the public that is designated
for, or has one its main uses used by pedestrians."	30
The Magistrate said as part of his reasons, "But you were on a
nature strip, because that is an area between a road, which
you were not on, except a road related area, which would have
been the footpath. But you were on an area between Shute	40
Harbour Road and the shopping centre, which I believe to be adjacent land. The shopping centre is adjacent land."
The Magistrate then went on to describe the area, and said
that - sand, "In my view both grassed areas are defined as	50

nature strips, and are, by exhaustive definition, covered by
the definition. If I am wrong, then I would in any case hold
the grassed areas - could be held to be footpath because they
are an area open to the public that has as one its main uses 1-3 ORDER 60

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used by pedestrians. That is they are certainly designed for
use by pedestrians, and, no doubt, used by pedestrians from
time to time. This is through the grassed areas, because you
don't have to walk on the footpath just because it's a

footpath, you can walk on the grassed area because it's	10
there."
To the extent that the Magistrate may have concluded that at
relevant times the appellant was on a nature strip, I
respectfully disagree. He was, however, in my view, correct	20
in his alternative view that the area beside the concrete path should have been regarded as a footpath.
His reasoning in that context appears reasonable. He might
have added that persons prefer to walk on grassed areas or run	30
on grassed areas. Persons need to walk on grassed areas from time to time in order to give passage to other persons, such as persons with disabilities, who might occupy any concrete component to a footpath.
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A footpath in my view is not confined because of it's
composition or combination of it's composition. That is to
say that if there were a footpath comprised mainly or totally
of gravel, that it would not only be the definable well worn
path that carries most of the traffic, but would be regarded	50
as a footpath.

Such comments would apply similarly to a footpath that was entirely made of grass. That is because, in my respectful 1-4 ORDER 60

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opinion, that the area where the appellant was observed and
identify by his own evidence as the location, should be
regarded as a footpath because one of the main uses of that
area was used by pedestrians. I think no other conclusion

ought to have been arrived at by the learned Magistrate.	10
The appeal is dismissed.

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