Yabsley v Donaldson
[2006] QDC 395
•27 November 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Yabsley v Donaldson [2006] QDC 395
PARTIES:
MARK VICTOR YABSLEY
Appellant
V
GLEN JAMES DONALDSON
Respondent
FILE NO:
Appeal 2193/06
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
27 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
6 November 2006
JUDGE:
Judge Brabazon QC
ORDER:
Appeal Dismissed
CATCHWORDS:
APPEALS – TRAFFIC LAW – DRIVING OFFENCES – where the police officer was found not guilty by the magistrate – whether the defendant was performing a function incidental to the performance of his duties.
COUNSEL:
Dr D H Katter for the Appellant
Mr P E Smith for the Respondent
SOLICITORS:
Queensland Police Service, Solicitors Office
Gilshenan & Luton Solicitors for the Respondent
The Issue
The respondent is a police officer, Plain Clothes Senior Constable Donaldson. On 9 February 2004 he was driving an unmarked police car in Gregory Terrace, Brisbane. A speed camera recorded its speed at 71 kph in a 60 kph zone.
He was prosecuted for a speeding offence. He said that he was not guilty. A trial commenced on 24 June 2005. After a transcript was obtained, and written submissions delivered, the learned magistrate gave a written decision on 20 July 2006. She found PCSC Donaldson not guilty.
In this appeal, the prosecution says that, as a matter of law, there is not enough evidence to sustain that conclusion. A verdict of guilty should be entered.
The Legal Framework
Driving at an excessive speed is an offence against the provisions of the Transport Operations (Road Use Management) Act 1995. Section 144 has an exception:
“Provisions of this Act about offences (other than s 79 and s 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.”
The burden of proof that any person or vehicle was at any time exempt from any provisions of that Act is on the defendant – see s 124(q) of TORUM.
Consistently, the then Police Service Administration Act 1990 referred to “the functions of the police service”. See s 2.3, which set out in a general way the basic duties of the police service including, for example (c) the prevention of crime and (d) the detection of offenders and bringing of offenders to justice.
The powers and duties of the police service are now to be found in the Police Powers and Responsibilities Act 2000. The concept of a “function of the police service” is mentioned in s 446 of that Act.
“446. Performance of duty. A police officer performing a function of the police service is performing a duty of a police officer even if the function could be performed by someone other than a police officer.”
Decisions of the courts show how the exemption in s 144 of TORUM has been applied – or how earlier, similar provisions have been interpreted. In Bevis v Priebe (QCA, 18 August 1997) a similar exception in s 68 of The Traffic Act was considered. The court pointed out that the functions of the police service set out in the Police Service Administration Act were necessarily described in very general terms. The exception only applied when the actual doing of the act, which would ordinarily be an offence, is in the exercise of the power or performance of a function. For example, a police officer may actually prevent a crime, or actually bring an offender to justice. In the case before the court, the police officer was charged with going through a red light, while delivering a blood kit for testing an alleged offender who was in hospital. It was held that he was merely performing an act incidental to bringing the offender to justice, and was not entitled to the benefit of the exception. He was found guilty.
As the court pointed out, a mobile patrol in city streets was not automatically permitted, merely by doing that, to break all traffic regulations. A police car taking a shop lifter to the police station for the purpose of charging him would not be permitted to go through red lights on the way. That was not the intention of parliament. That is to say, the exemption only applied to a police officer performing the actual function of, say, detecting an offender or actually bringing him to justice.
A similar conclusion was reached in the decision in Bett v Dugger (District Court of Queensland, Judge Bolton, 2000). There, a detective sergeant of police drove over the speed limit. He had been off duty, and was called back to his station because of investigation about a double murder. A large number of restaurant patrons, near the murders, were considered potential witnesses. They were taken to the police station for questioning. There were only a few police officers on duty. The off duty officer was asked to hurry up as he was needed at the station. It was made clear that the situation was very urgent.
The question for the court was whether the exceeding of the speed limit was merely incidental to the performance of a function of police service. It was held that breaking the speed limit was not merely incidental to the officer’s functions. It was a vital part of the functions he was required to perform. The reasonable expectations of the community would require him to travel as speedily as possible to the police station, while paying proper regard to the safety of other road users and members of the community. If a proper investigation was not carried out it might be readily concluded that he would fail to satisfy the reasonable expectations of the community.
In a third Queensland case, Fenelon v Bone (District Court, unreported, 3216 of 2003), the Chief Judge of this court considered the case of a police officer who was convicted of speeding. He was involved in a drug investigation. The suspect had been hard to find. The police officer arranged to attend a meeting between the suspect and his boss. When the day came, the boss rang to tell the police officer that he had the suspect coming in to his work place. He thought there would be a meeting at mid-day. Accordingly, the police sergeant proceeded there with some haste. It could not be presumed that there would be any sign of the suspect before mid-day, or that if he arrived then he would stay there. Accordingly, the officer drove from Upper Mt Gravatt to Lutwyche and exceeded the speed limit on the way.
In the Magistrates Court, it was found that the driving was merely incidental to the performance of his duties, and that he was not excused. That was despite the fact that he was armed with a warrant, and he had to go to the work place at Lutwyche to detain the suspect.
The decision of the Magistrates Court was reversed. It was found that the police officer’s journey was in the course of his exercising a power or performing a function under PPRA.
In South Australia, the legislation was differently expressed, in Tester v Police 1998 71 SASR 251, a police officer exceeding the speed limit was exempt, “in the execution of duty”. As it was put by the court:
“… in order to attract the exemptions the driving of the vehicle must relate to one of the core duties of a police officer such as the protection from crime or the control of traffic. This view is in accordance with the approach in Bevis v Priebe. The exemption applies only where a vehicle is being driven by a police officer in the execution of one of the recognised duties…”
To somewhat similar effect is the decision of the High Court of Australia in Hudson v Vanderheld (1968) 118 CLR 171. Driving a council vehicle along a highway did not necessarily mean that the council’s employee was doing anything, “under the Local Government Act.”
To return to the present case – it can be seen that PCSC Donaldson was not protected from any speeding offence, if he was merely driving his vehicle to the area to be patrolled, or driving it around that area. Such driving would merely be incidental to his actual duties. However, if he went over the speed limit to catch up with a vehicle in which he had an interest, then he was performing the functions of an officer in a crime car. That was the learned magistrate’s accurate appreciation of the correct application of s 144.
The Trial
It was common ground that PCSC Donaldson and Sergeant Hinchelwood were travelling on Monday 9 February 2004 in an unmarked Ford Sedan, on crime car duties in the Spring Hill area. They were posted to the CIB at City Station. Officers doing crime car duties had to travel around certain crime areas as identified by intelligence reports. The object was to apprehend suspicious persons and their vehicles. Vehicles were often intercepted.
PCSC Donaldson did not know about the speed camera photograph until about six weeks afterwards. He then could not recall what he was doing at the precise time the photograph was taken. He recalled that he was performing crime car duties. He said that the only reason he would be speeding was to catch up with a suspect vehicle in front of him, which required further scrutiny. He said that he usually travelled with the flow of traffic, and on occasions briefly accelerated to check a vehicle for various reasons – registration, seat belt, mobile phone, possibly stolen, the identity of the occupants. He said that the only time he drove over the speed limit was to perform such crime car duty. (That was the effect of his written report of 13 March 2004, and his oral evidence at the trial.)
Sergeant Hinchelwood gave similar evidence. She said that he was not a fast driver, but he might speed up to have a look at a car. As she put it: …”You can’t intercept a vehicle without speeding. You can’t even get up next to the vehicle to have a look at who it is without speeding. (Without speeding) you are not able to get to the vehicle, if that vehicle is travelling at the speed limit. You are never going to be able to get up to them to have a look and see who it is and what’s going on.”
A more experienced police officer who had done similar patrols said that it was impossible to perform crime car duty without speeding at times.
The prosecution introduced a body of evidence directed to showing that there was no good reason for the speeding. For example – records show that PCSC Donaldson had travelled only 29 kilometres in the vehicle, and much of that was on a trip to the southside of Brisbane, there was no written report of any incident, there was no other record of activity, such as issuing an on the spot ticket, and the actual photograph of the car did not confirm his assertions about catching up with a vehicle in front of him.
The learned magistrate had before her evidence about the crime car system of patrols, and all the police records that could be assembled to throw some light on what happened on that day. PCSC Donaldson and Sergeant Hinchelwood both gave evidence.
The learned magistrate made these findings fact:
“I find the two police officers, PCSC Donaldson and Sergeant Hinchelwood, to be honest reliable witnesses. I accept their evidence. I also consider the evidence of Detective Senior Sergeant MacIntosh, the officer in charge of the City CIB, to be helpful and instructive when considering the work of police officers when doing crime car duties and their practices.
I accept that there may be times the crime car is driven at a speed over the speed limit to carry out the functions of police work of those doing crime car duties and the police officer driving may exceed the speed limit to perform a crime car duty and there may be no audit trail of that incident.
I consider the defendant’s explanation as to why he was speeding to be inherently likely and believable especially in the context of his excellent driving record and the duties he was performing.
I find that at the time he was detected speeding the defendant was driving as he says, that is, he was attempting to catch up with a vehicle travelling in front of him that required some further scrutiny.”
In this court, it was submitted for the appellant that:
“There was no evidence before the court to prove, even on the balance of probabilities, that the defendant was exceeding the speed in order to inspect a motor vehicle and thus performing a function as a police officer. This determination should not have been made on the hypothetical possibilities of what was given in evidence by the respondent. It is open to this appeal court to overturn the learned magistrate’s decision despite Her Honour’s findings ….”
I have read the transcript of evidence. There was evidence from the two police officers that, in effect, PCSC Donaldson only sped up to catch up with another vehicle.
The learned magistrate took into account the submissions about those matters that were said to raise doubts about the likelihood of PCSC Donaldson’s claims – that is, the absence of any records which would show what he was actually doing, and the effect of the photograph. She also considered some evidence, directed towards showing that the absence of formal records was not conclusive about the activities that may have actually taken place.
It is difficult to see how the findings of fact might be disturbed. The learned magistrate seems to have considered all the evidence. The defendant’s evidence was not so improbable that it had to be disregarded. The learned magistrate correctly explained that while it was up to the prosecution to prove beyond reasonable doubt that he had committed an offence, the burden of proving his defence in this case was on him, on the balance of probabilities.
It was open to the learned magistrate to draw the inferences that she did, on the basis of the evidence that she accepted. She accepted the evidence of the two officers. In short, it is not possible to see any reason why her findings of fact should be overturned. She had the advantage of seeing all the witnesses. It is true that there was a body of evidence which showed that there was no documentary support for his account, of speeding up to look at a vehicle. However, there was nothing in that evidence which demonstrated that his account could not be accepted.
The Regulations
Regulations have been made under the provisions of TORUM. They are the Transport Operations (Road Use Management – Road Rules) Regulation 1999. Part 19 deals with various exemptions. It includes Regulation 305:
“Exemption for Drivers of Police Vehicles
(1)A provision of this regulation does not apply to the driver of a police vehicle if -
a.In the circumstances –
i.The driver is taking reasonable care; and
ii.It is reasonable that the provision should not apply; and
b. If the vehicle is a motor vehicle that is moving – the vehicle is displaying a blue or red flashing light or sounding an alarm.
(2) Subsection (1)(b) does not apply to the driver if in the circumstances it is reasonable –
a. Not to display the light or sound the alarm; or
b. For the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.”
Speed limits are provisions made under that regulation – see Regulation 20 and following. It would seem that the regulation is potentially wider in its scope than s 144 of the Act, at least in the case of speeding offences. It was submitted on behalf of the appellant that the regulation should be interpreted as merely a regulation explaining and elaborating upon the Act, and, in particular, s 144. In my opinion, that would not be the correct view of the regulation.
The learned magistrate considered the application of regulation 305. For reasons substantially the same as those set out above, she found that PCSC Donaldson was taking reasonable care when travelling at 71 kph (there being no evidence to suggest that he was driving without reasonable care) and that it was reasonable to be driving an unmarked police vehicle. She went on to find it reasonable that the regulation imposing a speed limit should not apply to him at the time, as he had exceeded the speed limit to perform his crime car duties.
Because of her findings of fact, the learned magistrate’s conclusion under Regulation 305 cannot be open to challenge.
Conclusion
The learned magistrate in careful reasons considered all the appropriate issues. Having made findings about the facts, she considered the above decisions, which illustrate the limits of the statutory exception. There was nothing to show she was wrong in her application of the decided cases. In my opinion, on the facts as found by her, her conclusion was the proper one.
It follows that the appeal must be dismissed.
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