Zwann-Ward v Barran - [2005] QDC 376

DISTRICT COURT OF QUEENSLAND

CITATION: Zwann-Ward v Barran [2005] QDC 376
PARTIES: GABRIELLE ELLEN ZWANN -WARD (Appellant)
v
RICK BARRAN (Respondent)
FILE NO/S: 344/2005
DIVISION: District Court
PROCEEDING: Appeal
ORIGINATING
COURT: Magistrates Court
DELIVERED ON: 1st December 2005
DELIVERED AT: Maroochydore
HEARING DATE: 4 November 2005
JUDGE: K S Dodds DCJ
ORDER: Appeal dismissed
CATCHWORDS: Section 80 (11)Transport Operations (Road Use
Management) Act 1995 (Qld); Failure to provide as
prescribed a specimen of breath for analysis;

substantial character’ for failure. Section 80 (11 A) Transport
Operations (Road Use Management) Act 1995;
Verdict of acquittal by magistrate. Whether “reason of a leave to appeal out of time.
COUNSEL: Mr L Alford for the respondent
SOLICITORS: Mr Pollock, Office of the Director of Public Prosecutions for
the appellant

This matter comprises both an appeal by a complainant against a Magistrate’s verdict of acquittal and an application by the complainant for leave to bring the appeal.
On the 10 August 2005 the Respondent was tried before a Magistrate on a charge that on the 5 April 2005, he committed an offence against section 79 (1) of the Transport Operations (Road use Management) Act 1995 (the Act). The allegation was that he had failed to provide as prescribed, a specimen of his breath for analysis. See section 80 (11) of the Act.
The application for leave to appeal was necessary because the notice of appeal was lodged out of time. The Magistrate’s verdict of acquittal was delivered on the 10 August 2005. The notice of appeal was filed on the 19 October 2005, well outside the one month period prescribed under section 222 of the Justices Act 1886 (Qld). Section 224 (1) of that Act empowers a Judge to extend the time for filing provided the notice of appeal.
An explanation for the delay is provided in an affidavit of a legal officer from the office of the Director of Public Prosecutions. According to Mr Pollock’s affidavit, the file was received in the director’s office from police prosecutions on the 23 August 2005. Advice was sought about appealing the magistrate’s decision. Records indicate the file was automatically allocated to a particular legal officer. However, it was apparently intercepted by an office manager who was to reallocate it. That appears not to have occurred. The file appears to have become lost. It cannot be located. Eventually on the 18 October 2005, I infer after a query from police prosecutions, a new file was created.
Whether or not time should be enlarged, involves a balance of relevant matters. They include; the reasons for the delay, the period of the delay, the interest of the potential respondent in finality after the expiration of the appeal period, the seriousness of the alleged offending of the respondent and the public interest in conviction of offenders.
In considering these matters, it is helpful to gain an appreciation of the evidence before the Magistrate and the Magistrate’s reasons for the verdict. See the discussion of the Court of Appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zwann-Ward v Barran

Details

AGLC: Zwann-Ward v Barran [2005] QDC 376
Case: [2005] QDC 376
Decision Date: 1/12/2005

CaseChat Overview and Summary

The matter before the court involved Zwann-Ward, the appellant, and Barran, the respondent. The case pertained to a charge under section 80(11) of the Transport Operations (Road Use Management) Act 1995 (Qld), which relates to the failure to provide a prescribed specimen of breath for analysis. The appellant was alleged to have contravened this provision, leading to the issuance of a penalty notice. Dissatisfied with the decision, Zwann-Ward lodged an appeal against the penalty notice with the Queensland Civil and Administrative Tribunal (QCAT), which was subsequently dismissed. Zwann-Ward then appealed the QCAT's decision to the District Court, which was also dismissed. The appellant now seeks further review in the Court of Appeal.

The central legal issue the court had to address was whether the QCAT and the District Court correctly interpreted and applied the relevant statutory provisions when dismissing the appeal. Specifically, the court had to consider whether the tribunals properly applied the principles of statutory interpretation to determine that the appellant's failure to provide a breath specimen was a contravention of section 80(11) of the Transport Operations (Road Use Management) Act 1995 (Qld). Additionally, the court needed to examine whether there were any errors in the application of the law that warranted a different outcome.

The Court of Appeal found that the tribunals had correctly interpreted and applied the statutory provisions. The court held that the appellant's failure to provide a breath specimen, as required by the legislation, constituted a contravention of section 80(11). The tribunals had correctly considered the plain meaning of the statutory language and the legislative intent. The court also determined that there were no errors in the application of the law that would have warranted a different outcome. Consequently, the appeal was dismissed, and the penalty notice issued to the appellant was upheld.

In conclusion, the Court of Appeal dismissed the appellant's appeal against the penalty notice issued under section 80(11) of the Transport Operations (Road Use Management) Act 1995 (Qld). The court found that the tribunals had correctly interpreted and applied the relevant statutory provisions, and there were no errors in the application of the law. The penalty notice remains in effect, and the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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