Van Der Walt v Winston

[2015] QDC 303

DISTRICT COURT OF QUEENSLAND

CITATION:

Van Der Walt v Winston [2015] QDC 303

PARTIES:

MARTIN PETER VAN DER WALT

(appellant)

v

GLEN ROBERT WINSTON

(respondent)

FILE NO/S:

1932/2015

DIVISION:

Civil

PROCEEDING:

S 222 appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

27 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2015

JUDGE:

Richards DCJ

ORDER:

Appeal allowed. Conviction set aside. Verdict of acquittal entered. The respondent is ordered to pay the appellant’s costs of the appeal and the trial in the sum of $4,326.15.

CATCHWORDS:

Costs – where the appeal is conceded – where the prosecution was inadequate from the start of proceedings

COUNSEL:

Mr G Allan for the appellant.

Mr B White for the respondent.

SOLICITORS:

ODPP for the respondent

1. The appellant was convicted after trial in the Holland Park Magistrates Court on 29 April 2015 of a charge of driving a vehicle that was not unsafe but otherwise defective under s 5(1)(b) of the Transport Operations (Road Use Management – Vehicle Standards and Safety) Regulations 2010.  Particulars of the charge given at the beginning of the hearing were to the effect that pursuant to s 71(f) of the 2010 Regulations that the vehicle did not comply with the code of practice vehicle inspection guidelines that “at least half of the number of windows which are designed to be opened, which must include the driver’s window, are not capable of being opened”.  The trial was conducted on the basis of those particulars.

1. On 16 December 2013 the appellant, when pulled over in his car by police, indicated that his driver’s side window was not working and had not been working for some time.  The police officer in question did not test the window to see if it was actually capable of being opened and he did not ask the appellant to test the driver’s side window to see if it would open.  The appellant was not asked whether the other three windows in the car worked (and in fact they did work). 

1. The appellant gave evidence that about two to three weeks after 16 December 2013 he accidentally discovered that the driver’s side window in fact was working and it worked on two separate occasions after that date.  This evidence was not challenged in the trial and it is accepted by the Crown that this unchallenged evidence should have been accepted by the Magistrate, or at the very least should have given the Magistrate a reasonable doubt about the window being inoperative on the day in question.

1. Further, the Magistrate found that the case had been made out on the basis that she was satisfied beyond reasonable doubt “on the evidence at the time of the interception, the front driver’s side window was not capable of being opened and therefore did not comply with the code of practice”.  However, it is conceded by the Crown that this was an incorrect assessment of the law in that there was no evidence that the driver’s side window plus one other window on the appellant’s vehicle was incapable of being opened.  It is conceded by the Crown that given the particulars provided to the defendant at trial that that had to be proven for the charge to be made out and, in fact, at the hearing of this matter when making submissions Ms Massingham for the respondent said at T1-35 L40:

“So the legislative part is as follows: section 7 sets out that the vehicle is defective and includes when a part of the vehicle doesn’t comply with the vehicle standards.  Section 4 states that the vehicle standards are set out in Schedule 1 and subsection (1)(f) of the code of practice is… I’ve handed that up earlier, your Honour, and that sets out when a vehicle would fail a roadworthy certificate.
At least half the number of windows which are designed to be opened which must include the driver’s window are not capable of being opened, and that’s in column two, reason for rejection.  So the standard required is that the – half the windows must be – which are designed to be opened must open including the driver’s window.”

1. Despite submitting this and setting this out for the Magistrate there was no concession that there was no evidence to support a finding of guilt given that even the Crown case at its highest could only point to one window that was defective.  

1. The appeal is conceded by the Crown with the exception that the Crown maintains that there should be no order as to costs. 

1. An order for costs at first instance is pursuant to s 158A of the Act which provides the order for costs should be made if the court is satisfied that it is “proper” that the order for costs should be made.  The respondent maintains the appellant has not demonstrated why the discretion should be exercised in their favour, however, it seems to me that the appellant had very little choice other than to bring the matter to trial.  The respondent maintains that the prosecution was brought and continued in good faith to such an extent the Magistrate convicted the appellant.  The Magistrate did indeed convict the appellant but the prosecution was brought on particulars that the prosecution knew they could never make out, namely that there was more than one window that was inoperative.  The prosecution, indeed, made submissions that that was the requirement but did not point to any evidence that proved their case and, in fact, must have known that they did not have the evidence to prove that part of the case.  To that extent the prosecution was ill-conceived from the very start and should not have proceeded.

1. Once a conviction was recorded, of course, the appellant had no choice but to take the matter to the District Court to obtain justice.  The Crown rightly conceded the appeal but because of the erroneous decision to proceed to trial by the Crown in the first place the appellant has necessarily incurred costs.  Accordingly, it is appropriate that costs be paid to the appellant, in my view, in this case. 

Order

1. The appeal is allowed, the conviction set aside.  The respondent is ordered to pay the appellant’s costs of the appeal and the trial.  In accordance with the requirements of scale payment should be made in the sum of $2,000 for the Magistrates Court hearing and $2,326.15 for the appeal and, accordingly, costs are so ordered.