Theo v The Commissioner of Police

[2011] QDC 237

DISTRICT COURT OF QUEENSLAND

CITATION:

Theo v The Commissioner of Police [2011] QDC 237

PARTIES:

ATHINA THEO
(Appellant)
v
THE COMMISSIONER OF POLICE
(Respondent)

FILE NO/S:

1009 of 2011

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court, Redcliffe

DELIVERED ON:

13 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2011

JUDGE:

Everson DCJ

ORDER:

Appeal dismissed  

CATCHWORDS:

APPEAL – CRIMINAL LAW AND PROCEDURE- driving a defective vehicle – driving an unregistered vehicle

Justices Act 1886, s 48, s 139, s 222,
Transport Operations (Road Use Management) Act 1995, schedule 4

Riley v Doyle & Anor [1997] QCA 112
Mbuzi v Torcetti [2008] QCA 231
McKenzie v McKenzie [1970] 3 All ER 1034

COUNSEL:

Appellant in person

Ms Coker for the respondent

SOLICITORS:

Office of Department of Public Prosecutions (Queensland) for the respondent

1. This is an appeal pursuant to section 222 of the Justices Act 1886 (“JA”).

1. On 11 March 2011 the appellant was found guilty in the Magistrates Court at Redcliffe following a lengthy trial of two offences. These were firstly, that she drove a defective vehicle, namely a trailer on Deception Bay Road, Deception Bay and secondly that the trailer was unregistered. She was fined a total of $260.00. She is appealing her conviction in each instance.

1. The learned acting magistrate accepted the evidence of two police officers that they detected the appellant driving a motor vehicle towing a trailer on Deception Bay Road and that as it turned into a driveway neither the brake lights nor the indicator lights were activated. Subsequent enquiries revealed that the trailer was unregistered. It was not contentious that the trailer was unregistered and that the brake lights and indicator lights were not operational. The appellant alleged that she only manoeuvred the trailer within the yard of her property and did not drive it on a road. She gave evidence to this effect. The learned acting magistrate rejected her evidence in this regard.

1. Despite the relatively minor charges in issue, the hearing in the Magistrates Court extended over five days and the Outline of Argument filed by the appellant in the appeal before me extends to 117 pages. I have no desire to add to the prolixity demonstrated by the appellant in the way she has presented her case at first instance and again on appeal. I have however reviewed the transcript of the trial and the decision of the court below. I have also read the appellant’s Outline of Argument in its entirety.

1. Essentially the appellant alleges that the court which tried her did not have jurisdiction to do so, that she did not recieve a fair trial and that it was not proved that she was guilty of the offences beyond a reasonable doubt.

1. Obviously some of these issues depend on findings made by the learned acting magistrate with respect to evidence placed before him. In this regard it is important to take heed of what the court of appeal stated in Riley v Doyle & Anor[1]:

“Where credibility is the critical issue and the Magistrate has made findings based on credibility an appellant cannot succeed unless it can be shown that the Magistrate has failed to use or has misused his advantage in seeing the witnesses or has acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable.”

[1] [1997] QCA 112 at p.3

1. The role of a judge in an appeal of this type was explained in Mbuzi v Torcetti[2] in the following terms:

“On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions.”

[2] [2008] QCA 231 at [17] per Fraser JA

1. The allegation that the court below did not have jurisdiction to hear and determine the changes against the appellant appears to have two bases. Firstly when it became apparent that the offences allegedly occurred outside the Magistrates Court district of Redcliffe and within the Magistrates Court district of Caboolture, the learned acting magistrate permitted an amendment to each charge to read “in the Magistrates Court District of Caboolture and within 35 kilometres of the boundary of the Magistrates Court district of Redcliffe.” He purported to do this pursuant to section 48 of the JA which contains broad powers to amend a complaint and pursuant to section 139 of the JA which gives the Redcliffe Magistrates Court jurisdiction for offences committed within 35 kilometres of the Magistrates Court district of Redcliffe.[3] There was a proper evidentiary basis for the making of this amendment. No ground has been demonstrated for interfering with the learned acting magistrate’s decision in this regard.

   [3] S 139(1)(b).

1. The other basis for the appellant arguing want of jurisdiction in the court below appears to lie in an allegation that the third day of the trial took place in the Sandgate Magistrates Court without her consent. This it is alleged was contrary to section 139(2B) of the JA. The learned acting magistrate had before him sufficient grounds for concluding that the change in venue was by consent. Moreover no prejudice was suffered by the appellant in this regard. The fact that one day of a five day hearing took place at a nearby court house caused no injustice and the appellant did not submit otherwise.

1. The appellant alleges that she was denied natural justice because her husband was not allowed to remain in court while she gave evidence. It is argued by her that this in some way derogated from his role as a McKenzie friend, however there is no substance in this allegation. Other numerous instances are set out where the appellant alleges that the learned acting magistrate unfairly restricted her husband in performing his role. These allegations are without foundation. The learned acting magistrate demonstrated a sound understanding of the role and of its limitations. A McKenzie friend may take notes, quietly make suggestions and give advice, but may not take part in a proceeding as an advocate.[4] When the appellant’s husband became disruptive the learned acting magistrate was perfectly entitled to remove him from the court.

   [4]McKenzie v McKenzie [1970] 3 All ER 1034 at 1036.

1. On reviewing the transcript of the trial and having regard to the submissions of the appellant I can find no fault with the findings the learned acting magistrate made. The appellant made numerous unfounded allegations which wasted considerable time. These allegations included that the police officers who investigated the offences were not wearing their hats when they approached the appellant and her husband. It was submitted at first instance and again on appeal that this assumed significance in terms of the lawfulness of the investigation of the offences. It was also repeatedly submitted that the trailer in question was not a vehicle despite it clearly falling within the definition of vehicle in the Transport Operations (Road Use Management) Act 1995.[5]

   [5] Sch 4 relevantly “includes any type of transport that moves on wheels”.

1. The learned acting magistrate was perfectly entitled to prefer the evidence of the police officers to that of the appellant which he observed to be improbable in the circumstances. He correctly identified the elements of the offences and that he was satisfied that all of the elements of each offence had been proved beyond a reasonable doubt.

1. The appeal is entirely without merit.

1. I dismiss the appeal.