Tresize v Jensen

[2005] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Tresize v Jensen [2005] QDC 226

PARTIES:

ANDREW DOUGLAS TRESIZE

Appellant

v

MURRAY RAYMOND JENSEN

Respondent

FILE NO/S:

D265 / 2005

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Ipswich

DELIVERED ON:

25 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2005

JUDGE:

Judge Alan Wilson SC, DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

APPEAL – APPEAL AGAINST CONVICTION – conviction after a summary trial of driving without due care and attention – Transport Operations (Road Use Management) Act 1995

Transport Operations (Road Use Management ) Act 1995

Jiminez v The Queen (1992) CLR 572

COUNSEL:

Mr C J Crawford for the Appellant

Mr M Hungerford-Symes for the Respondent

SOLICITORS:

Appellant self-represented

The Director of Public Prosecutions (Queensland) for the Respondent

1. The appellant was convicted after a summary trial in Ipswich Magistrates Court on 2 November 2004 of one count of driving without due care and attention on 26 November 2003.  He was fined $350 and ordered to pay $62.10 costs of court and allowed four months to pay, in default eight days’ imprisonment.  A conviction was recorded.

1. He appeals the conviction on three grounds (other grounds were abandoned):

(1)           That the decision was against the weight of evidence.

(2)That the Magistrate failed to apply or properly apply the provisions of the law in respect of mistake of fact.

(3)That the Magistrate placed an altogether excessive burden upon the appellant to show his innocence and, therefore, inappropriately applied the onus of proof.

1. The charge arose from an accident which occurred at Brassall on the Warrego Highway at about 5.10 p.m. on 28 November 2003 when a vehicle driven by the appellant left the highway, entered the median strip and collided with some trees.  The learned Magistrate found the accident occurred when the defendant fell asleep at the wheel, and then went on to hold that occurred in circumstances where the appellant had “…clearly had forewarning that he was tired and fatigued and he took some, in my view, inadequate steps to do something about it and continued on to drive.”[1]

   [1]Reasons, page 14

1. Both the appellant and his co-worker and passenger, Mr Rasmussen, gave evidence.  The appellant was living at home and said he arose on that day between 5 and 5.30 a.m., prepared his lunch and packed his vehicle, and then picked up Mr Rasmussen and then went, firstly, to his “work yard” and then to a work site at Gatton.  They worked there throughout the day, with breaks for a morning smoko and lunch, leaving on the return journey about 4 p.m.  As was their custom, they stopped at a BP service station about 15-20 minutes into the return journey and washed up and changed clothing.

1. The passenger, Mr Rasmussen, said he was looking out the window when he noticed the vehicle veering from its correct path and looked across at the appellant, who was wearing sunglasses.  He thought the appellant might have been asleep, or had passed out.  He yelled, but too late to prevent the vehicle leaving the road.

1. The appellant gave evidence that he remembered the yell.  An ambulance officer who was passing stopped and checked both of them but then left as police arrived.

1. One of the police officers, Constable Jensen, recorded a conversation with the appellant in his notebook in which, in answer to the question whether he had fallen asleep, he said, “possibly, yeah” and, on being asked whether he had felt tired he said:

“I felt tired but I was awake.  I was fatigued.
…I must have blanked out…maybe dozed off.  I don’t know.”

1. In Jiminez v The Queen (1992) 173 CLR 572 the majority[2] said, at 578:

“Every act of falling asleep at the wheel is preceded by a period during which the driver is driving while awake and therefore, assuming the absence of involuntariness arising from other courses, responsible for his actions.  If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel continues to drive that vehicle, he is plainly driving without due care and may be driving in a manner dangerous to public.  If the driver does fall asleep and death or bodily injury results, the driving prior to the falling asleep is sufficiently contemporaneous with the death or bodily injury to be regarded as the cause of the death or bodily injury…the case must be rare in which a driver who falls asleep can be exonerated of driving without due care at least, in the moments preceding sleep.  As King CJ recognises, where the question is whether a driver who falls asleep at the wheel is guilty or driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep.” (emphasis added)

[2] Mason CJ, Brennan, Deane, Dawson, Toohey, and Gaudron JJ

1. At page 580, those members of the Court said:

“Various matters will be relevant in reaching such a conclusion.  The period of the driving, the lighting conditions including whether it was night or day and the heating or ventilation of the vehicle are all relevant considerations.  And of course, it will be necessary to consider how tired the driver was.  If there was a warning as to the onset of sleep that may be some evidence of the degree of tiredness.  And the period of driving before the accident and the amount of sleep that he had earlier had will also bear on the degree of tiredness.”

1. According to the police evidence the appellant was prepared to concede that he may have dozed off.  Evidence about the work he had performed during, and the events of, the preceding work day tended to support that inference and, at least, explain why he felt ‘tired’ and ‘fatigued’. An attack was mounted against the learned Magistrate’s reference to the appellant stopping at the service station and “splashing his face” and it was said that the inference which was drawn (that the appellant was attempting to wake himself up) was unreasonable and inconsistent with other evidence indicating stopping to wash up at the service station was normal daily practice.  Even if the inference was too broad, the balance of the evidence supported the conclusion the appellant did, in fact, fall asleep at the wheel.

1. The second ground concerns s 24 of the Criminal Code and an assertion that the Prosecutor failed to present evidence which would extinguish any ground for a finding that the appellant had an honest and reasonable, even if mistaken, belief that he was in a fit state of alertness to drive the vehicle. Reliance was placed upon his evidence that he felt “…tired but awake”.

1. In this respect reliance was sought to be placed upon the evidence of the passenger Mr Rasmussen who said he saw no indication that the appellant seemed likely to fall asleep, but the Magistrate found the witness unconvincing and said:

“He gave me the distinct impression that he was doing his best to assist the defendant who was his boss at the relevant time…he seems to be somewhat unreliable as far as that goes.”[3]

[3]Reasons, page 6 ll 20-40

1. Save as already noted the appellant did not present any direct evidence that raised a defence under s 24. The Reasons, while not directly addressing the defence, deal with the evidence and contain findings which were reasonably open and it is clear that even if the matter had been more fully addressed the conclusion would have been no different. So much is clear from page 79 of the trial transcript when the learned Magistrate said:

“…that gets back to the same question we were talking about before, doesn't it, as to what warning he had and if he did fall asleep as to whether he had forewarning that he was going to.”

1. The defence had to be considered, of course, in the way discussed in Jiminez (supra) and, in particular, the remark that it is only a rare case in which a driver who falls asleep can be exonerated of driving without due care, at least, in the moments preceding sleep.  As the majority said in that case (at 581), the important issue is whether it is proper to draw the inference that a driver who fell asleep had a warning that he might do so if he continued driving.  That is what the court found here, and in light of the appellant’s own evidence it cannot be said the finding was not reasonably open, or against the weight of the evidence.

1. Jiminez shows, too, that it was also open to the court to draw an inference, from the finding that the appellant actually went to sleep at the wheel, that he was affected by tiredness to an extent that it was careless of him to continue driving (at 583).  Again, drawing that inference from the evidence was not unreasonable, or unjust, here.  Nor does the exercise involve any reversal of the onus of proof.

1. As to the final ground, the evidence placed before the court clearly left it open for the learned Magistrate to make the findings he did.  The evidence showed the appellant was tired and fatigued but did nothing to forestall the risk of a lapse into sleep.  In the absence of any evidence of any mechanical, medical or other exonerating reason, the finding the accident was the product of a want of due care and attention on the appellant’s part does not involve any error touching the proper application of the onus of proof.

1. In the absence of error and in the face of findings which were open on the evidence, the conviction cannot be considered unsafe or unsatisfactory and the appeal is dismissed.