Wood v. Banister

[2008] QDC 247

DISTRICT COURT OF QUEENSLAND

CITATION:

Wood v Banister [2008] QDC 247

PARTIES:

GREGORY MARK WOOD
(Appellant)

v

JOHN MARSHALL BANNISTER

(Respondent)

FILE NO/S:

224 of 2008

DIVISION:

District Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Cleveland Magistrates Court

DELIVERED ON:

29 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2008

JUDGE:

Forde DCJ

ORDER:

1.        Appeal allowed.

2.        Conviction quashed.

3.       The respondent to pay the appellants’ costs of and incidental to the appeal to     be assessed on the standard scale.

CATCHWORDS:

MARINE INCIDENT – Obligations on persons involved with operation of ship to operate it safely – erroneous reasons given by magistrate – elements of offence

Criminal Code Act 1899, s 23(2)
Justices Act 1886, s 222
Transport Operations (Marine Safety) Act 1994, s 8, 34, 43(2)(a), 123(1)
Transport Operations (Marine Safety – Bareboat Ships) Standard 2007, s 11(1)

Taylor v Lanyon [2006] QDC 321
Wood v Watkins [2007] QDC 115

COUNSEL:

J Curran for the Appellant 

D H Katter for the Respondent

SOLICITORS:

Wellners Lawyers for the Appellant

Queensland police Service Solicitor for the respondent

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE FORDE

GREGORY MARK WOOD	Appellant
and
SENIOR CONSTABLE J M BANNISTER	Respondent

BRISBANE

..DATE 29/09/2008

ORDER

HIS HONOUR:  On the 1st of June, 2005 Paul Smith was floating

in his vessel off the coast of Cleveland.  The vessel was

relatively stationary but not anchored.  The appellant,

Gregory Wood, approached his vessel and yelled at Mr Smith,

passing some 10 metres from his vessel at about 25 to 30

knots.  The appellant then turned his vessel around and came

back on the same track.  There had been a history of animosity

between the two men.

The appellant was charged under section 43(1) of the Transport

Operations (Marine Safety) Act 1994 Queensland - the Act.  He

was finded the sum of $1,500.  The appellant appeals pursuant

to section 222 of the Justices Act 1886 (Qld). The appellant

was convicted after pleading not guilty.  It was alleged that

the appellant operated his vessel unsafely in contravention

of section 43(1) of the Act.

A person operates a vessel unsafely if the person causes the

ship or vessel to be operated in a way that it causes a marine

incident pursuant to section 43(2)(a) of the Act. Section

123(1) defines "marine incident" as causing or involving "(h)

danger to a person caused by the ship's operations or (i)

danger of serious damage to a ship".

Findings of Magistrate

For the purposes of being satisfied beyond a reasonable doubt,

the Magistrate took the unusual step of believing the

appellant's version of events (see reasons, page 15, line 15).

The distances and speed referred to above can be found in the

evidence of the defendant. (see transcript, page 54, lines 31

to 42)

The appellant said that he yelled out, "Leave Martin's fucking

pots alone."  This was a reference to some crab pots which

seemed to be the basis of ongoing ill feeling between the

parties.  The learned Magistrate observed:

This case, on the prosecution side, is about whether Mr Wood purposefully used his vessel, and the manner of operation of that vessel, to intimidate, threaten or harass, in fact, to frighten Mr Smith. (See reasons, page 14, line 27 to 32)

It is submitted by the appellant's counsel in his written

reasons that the Magistrate was in error in finding guilt

based upon the intention of the defendant.  Intent is not an

element of the offence and so that submission has merit.  As

is provided for under section 23 subsection 2 of the Criminal

Code, unless intention to cause a particular result is an

element of the offence, the result intended to be caused is

irrelevant.

Unfortunately, the Magistrate went on to say:

However, as I said, if he were simply driving close to another vessel or operating his vessel similarly close to anothervessel, where there was no intent to threaten, intimidate or scare, and where both vessels were simply going about their fishing operations, then such an activity may not have been unsafe, if there had been a clear track between the vessels and clear communication between the two vessels.  (See reasons, page 15)

There was certainly communication between the parties,

yelling abuse, and the distance was some 10 metres.  It is

clear on the objective factors that there is no finding by the

learned Magistrate that the appellant was operating a vehicle

unsafely.  As the vessel of Mr Smith was not anchored, there

was no minimum distance requirement between the vessels.  The

expert evidence was that if a boat was anchored, another

vessel must pass at a speed of less than 6 knots and not

within 30 metres.  (See reasons, page 10, line 30)

Submissions of Respondent  

Mr Katter, for the respondent, relies upon both the speed of

the vessel and the distance to substantiate the unpredictable

passage of the appellant's vessel.  It is submitted that the

reference by the Magistrate to "intimidate, threaten, harass"

was merely giving particulars of the "operated unsafely"

rather than a specific finding that intent was an element.

Even if that submission were accepted, it does not sit

comfortably with the finding that, apart from the conduct of

intimidation, there was no other conduct which could be said

to warrant a finding of operating the vehicle unsafely.

By way of comparison, reference was made to the decision of

Wood v Watkins [2007] QDC 115 per Judge Brabazon. That

decision provided a broad definition of "unsafe operation".

However, in that case, which dealt with the present factual

scenario, a different standard of proof was applied, namely,

on the balance of probabilities.  (See paragraph 22)

The respondent submits that even on the appellant's evidence

he was operating the vessel unpredictably.  The findings of

the Magistrate do not support that conduct apart from the

intimidation allegation.  The reference to operating the

vehicle unpredictably can be referred back to the definition

of "operated unsafely" as used in the Transport Operations

(Marine Safety Bare Boat Ships) Standard 2007 - Queensland.

Subsection 11 subsection 1 requires that the provider of a

ship must ensure that the user briefed about the obligation of

the Master of a ship "not to cause the ship to be operated

unsafely.  For example, not to cause the ship to be operated

unpredictably." (See subsection (i))

However, given the specific findings of the Magistrate, it

could not be said that there was unpredictable conduct

supporting a finding of operating the vessel unsafely.  It was

not merely a case of merely particularising the unsafe aspect

by referring to intimidation, et cetera, but, rather, an

erroneous approach to the elements of the section.

The respondent referred to Taylor v Lanyon [2006] QDC 321,

where a ship became grounded on a reef.  The grounding caused

damage to the reef.  His Honour Judge Rackemann was dealing

with a different statute but did make reference to section 43

as being an example of operating a vessel unsafely.

That could happen of course if a Master fell asleep at the

wheel and had been out for some days without sleep.  If the

vessel ran into another boat in those circumstances, clearly,

it would be operating a vessel unsafely.  That case of Taylor

v Lanyon can be distinguished from the present factual matrix.

The appellant's conduct here is not judged by what has

happened in the past or his previous convictions.  His conduct

may have been intimidating but not necessarily unsafe.  The

prosecution has failed to prove its case beyond a reasonable

doubt that the manner of operating the vehicle by the

appellant was an event causing or involving danger to Mr Smith

or a danger of serious damage to his vessel.

The appeal is allowed.

The conviction is quashed.

What about costs, Mr Curran?

...

HIS HONOUR:  It is ordered that the respondent do pay the

appellant's costs of this appeal to be assessed on the

standard basis.

Thank you for your submissions, helpful submissions,

gentlemen.

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