Wilkinson v Stevenson
[2000] QDC 426
•18/02/2000
[2000] QDC 426
| IN THE DISTRICT COURT HELD AT CAIRNS | Appeal No. 40 of 1999 |
| APPELLATE JURISDICTION | |
| BEFORE HER HONOUR JUDGE BRADLEY | |
| 18 FEBRUARY, 2000 | |
| BETWEEN: | DAVID BRADLEY WILKINSON |
Appellant
| AND: | SEN. CONSTABLE DARREN MARK STEVENSON |
Respondent
REASONS FOR JUDGMENT
The appellant was convicted on 1 September, 1999 in the Magistrates Court at Mossman
of the following offence:-
“That on 20th March, 1999 at Port Douglas in the Magistrates Court District of Cairns in the State of Queensland one DAVID BRADLEY WILKINSON whilst the concentration of alcohol in his blood equalled or exceeded 50 milligrams of alcohol per 100 millilitres of blood was less than 150 millilitres of alcohol per 100 millilitres of blood did drive a motor vehicle namely a motor car on a road namely Wharf Street, Port Douglas.”
This is an appeal against conviction and sentence.
Facts
On the evening of Friday, 19 March, 1999 the appellant finished work at approximately
11.00 pm at the Club Tropical Resort, Port Douglas, where he worked as a front office
attendant. He then went out with several friends drinking and as he knew that he would be
consuming alcohol he left his vehicle at his place of work with the intention of walking home. The appellant then proceeded to various establishments in Port Douglas. Just after 5.00 am
on Saturday, 20 March 1999 the appellant arrived at Nicky G’s Sports Bar located in the
Marina Mirage building. He was climbing the stairs when he heard a female say “Russell’s
been beaten up”. The appellant immediately went down the stairs and located Russell Butchers
on the back stairs of Nicky G’s. The appellant immediately noticed that Mr. Butchers had
lumps to his head, abrasions on his chest, his shirt was ripped, he had a large lump to his right
temple and his right ear was swollen, he had blood near his mouth and nose, was confused and
upset, seemed to be in a state of shock and was not very coherent.
The appellant was advised by other persons at the scene that an attempt had been made
to call the police and there was going to be an hour and half delay and that the ambulance had
been called and either there had been no response or there was going to be a substantial delay.
Someone asked if anybody had a car and no-one responded. The appellant was concerned
about the head injuries suffered by Mr. Butchers and he decided that he was the most sober
of the group and should fetch his vehicle to drive Mr. Butchers to the ambulance. The
appellant then ran a few hundred metres to where his vehicle was parked and drove his vehicle
back. Mr. Butchers got into the front passenger seat of the appellant’s vehicle and several
other people got into the rear. The appellant then drove out of the carpark of the Marina
Mirage and shortly thereafter was pulled over by police for the purposes of a random breath
test. Upon being spoken to by police the appellant said words to the effect “My friend’s been
in a fight I’m taking him to the ambulance. I tried to call the ambulance, there was no
response”. The road side breath test proved positive and the appellant subsequently provided
a specimen of breath for analysis on an approved breath analysing instrument which showed
a reading of .092 per cent.
| 5 | The distance from the Marina Mirage carpark to the ambulance centre is under two kilometres and the route which the appellant was taking at the time that he was pulled over |
was the shortest practical route to the ambulance. At the time that the appellant drove there
were a number of people waiting for taxis nearby but there were no taxis there at the time.
At the trial the respondent gave evidence on behalf of the prosecution, the appellant gave
evidence on his own behalf and further evidence for the defence was given by Mr. Butchers
and Ms. Bramwell, a female friend of the appellant who was with Mr. Butchers when the
appellant came across him and who was travelling in the rear of the appellant’s car when he
was stopped by police. Gregory David Bull also gave evidence that Mr. Butchers was his
apprentice, he was with him when the appellant arrived and he also got into the back of the
appellant’s vehicle.
Defence
Whilst the allegations of driving the motor vehicle and the blood alcohol content of the
appellant were not in dispute the appellant sought to rely on a defence pursuant to s.25 of The
Criminal Code.
So far as is relevant s.25 provides that:-
“a person is not criminally responsible for an act or omission done or made under such circumstances of sudden or extraordinary emergency that an ordinary person, possessing ordinary power of self control could not reasonably be expected to act otherwise.”
The appellant argues that it was obvious to him and that it would have been obvious to any
reasonably minded person that Mr. Butchers had suffered a serious assault and that in
particular the large lump to his right temple area would give serious concern for his health. The
appellant had basic first aid experience from his involvement in sporting activities and formed
the view that Mr. Butchers required immediate medical attention. As all other avenues to
obtain medical assistance for Mr. Butchers had been explored and exhausted the appellant
made the decision to drive Mr. Butchers to seek medical attention. The appellant argues that the circumstances in which he found himself amounted to “circumstances of sudden or
extraordinary emergency” and that in those circumstances an ordinary person possessing
ordinary power of self control could not reasonably be expected to have acted otherwise than
did the appellant.
The respondent’s evidence at the trial was that when he approached the appellant he was
told: “My friend’s just been in a fight. I’m taking him to the ambulance. We tried to call the
ambulance but there was no call.” He observed Mr. Butchers sitting in the front seat and
sitting upright. He spoke to Mr. Butchers in relation to his injuries and observed that he had
a couple of abrasions on his head. He formed the opinion that he was in no immediate danger
and that he didn’t need immediate medical attention.
Decision of Trial Magistrate
The Magistrate below found that -
“There is no evidence that Mr. Butchers’ condition was such that he had to be rushed to a hospital. He was not convulsing, neither was he slipping in and out of consciousness. He was aware of his surroundings and was able to walk to Mr. Wilkinson’s vehicle himself and was able to sit up in the front seat.
The most that can be made of Mr. Wilkinson’s evidence is that he was being cautious and was taking Mr. Butchers to the ambulance as a precautionary measure rather than having to rush him there to save his life or to prevent serious injury.”
The Magistrate found that the defence of extraordinary emergency had not been raised
on the balance of probabilities and convicted the appellant.
The onus was, of course, upon the appellant to satisfy the Magistrate on the balance of
probabilities that the evidence had raised the defence of extraordinary emergency. Once raised
the onus is on the prosecution to satisfy the tribunal of fact beyond reasonable doubt that the
defence is unavailable to the appellant.
| 11 | The learned Magistrate appears to have taken the view that it was clear from the circumstances facing the appellant that Mr. Butchers was not threatened with death or serious |
injury and that therefore there was no need for him to take immediate action to transport Mr.
Butchers for medical assistance. However, the appellant’s evidence regarding his belief at the
time with respect to Mr. Butchers’ injuries was as follows:-
“I’ve played a lot of football in the past and I also did quite a few years of martial arts training. When I received a hit to the head I’ve always had to seek medical attention just for observation if anything and I’ve also been present when a couple of people have had head injuries, had concussions or been knocked out and everyone of them I’ve always had to make sure they had medical attention basically. I’m sure everyone’s aware. I’ve seen things in the papers of people of getting one punch and dying as you mentioned before so it did concern me yes.”
And in answer to a further question in examination in chief –
“Yeah. The lump on the side of his head around his temple area worried me the most. Obviously the temple’s a sensitive area and a blow to the head there can cause damage so when there was all swelling there as well as the other bumps on his head I figured he’d obviously taken a few blows to the head.” (transcript p.15).
Regarding the credibility of the appellant the learned Magistrate stated –
“As to Mr. Wilkinson’s evidence in general, in my opinion he is giving his evidence as he remembered. However, having said that I feel that parts of his evidence were self serving.”
The learned Magistrate did not elaborate on any reservations he may have had regarding the
appellant’s evidence and he does appear generally to have accepted him as a credible witness.
Whilst the evidence of the respondent does cast some doubt on the reasonableness of the
appellant’s interpretation of the situation regarding Mr. Butchers’ injuries, the evidence of Ms.
Bramwell and that of Mr. Bull does support him and as the Magistrate was essentially of the
view that the appellant was an honest witness, the conclusion has to be reached that the
appellant’s belief that immediate action was required to prevent the threat of serious injury was
genuine. The fact that in the event it was discovered that Mr. Butchers had not suffered
serious injury is of course, irrelevant when considering the appellant’s state of mind at the time.
| 13 | There was therefore on the evidence before the learned Magistrate ample evidence to indicate that the appellant was under the “duress of circumstances” (a phrase used by the |
English Court of Appeal in R v Martin (1989) 1 AllER 652 to describe the application of the
defence of necessity in circumstances similar to those in the present case).
However before the defence can be said to be properly raised there must also be evidence
that the appellant was, from an objective point of view, acting “reasonably and proportionately
in order to avoid a threat of death or serious injury”. (R v Martin p.653) The appellant’s
actions in fetching and driving his vehicle in the circumstances of this case could not be said
to be an unreasonable response to the threat of serious injury to Mr. Butchers that the
appellant perceived to be real.
On the evidence therefore the defence of extraordinary emergency was raised and the
learned Magistrate made an error of law in finding that it was not.
The defence having been raised it was for the prosecution to negative it beyond
reasonable doubt. The questions that a tribunal of fact must ask itself are:-
(1) Was (in this case) the appellant or might he have been, impelled to act as he did because, as a result of what he reasonably believed to be the situation, he had good cause to fear that otherwise death or serious bodily injury would result; and (2) If so, whether a sober person of reasonable firmness, sharing the characteristics of the appellant, would have responded to that situation by acting as the appellant acted. If both questions are answered in the affirmative, then the defence will have been established.
The argument of the respondent was in part, that because Mr. Butchers was conscious,
able to get into the appellant’s vehicle and was coherent, and because the appellant allowed
some five other people to get into his car at the same time, the appellant was not impelled to
act as he did “because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result” (R v Martin
p.653-654).
However, on the facts before the Court, particularly the appellant’s evidence as to his
belief and the basis for that belief, and given the findings of the learned Magistrate regarding
the credibility of all of the defence witnesses, it is clear in my view that the Magistrate could
not have been satisfied beyond reasonable doubt that the appellant was not so impelled both
at the time that he fetched his vehicle and when intercepted by the police. Further, it is at least
a reasonable possibility that a sober person possessing ordinary power of self control could not
reasonably be expected to act otherwise. The appellant should have been given the benefit of
any such doubts or possibilities and should have been acquitted.
Accordingly the appeal is allowed and the conviction quashed and a verdict of not guilty
entered.
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