Mbuzi v Torcetti

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - QUEENSLAND - WHEN APPEAL LIES - BY LEAVE OF COURT - where by virtue of s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant required leave of the Court before his appeal could be heard - where the applicant appeared in the Magistrates Court charged by way of complaint that he drove a motor vehicle on a road with two continuous dividing lines and failed to drive to the left of those dividing lines in breach of s 132(3) of the Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld) - where the applicant pleaded not guilty to the offence charged - where the applicant gave evidence that he executed a U-turn during the course of which he clipped a traffic island and that at least two wheels went over the island - where the magistrate thereafter amended the charge pursuant to s 48 of the Justices Act 1886 (Qld) to allege that the applicant drove a motor vehicle on a road with a continuous single white line in breach of s 138(1) of the Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld) - where the applicant was found guilty of the offence under s 138(1) and fined $150 - where the applicant appealed to the District Court - where the District Court judge dismissed the applicant's appeal to that Court - where the applicant alleged that the decision of the District Court was occasioned by several errors - where leave will only be granted in circumstances where there is both a reasonable argument that there is an error to be corrected and an appeal is necessary to correct a substantial injustice - whether leave to appeal should be granted

District Court of Queensland Act 1967 (Qld), s 118(3)

Justices Act 1886 (Qld), s 48, s 49, s 52, s 222, s 223, s 223(1)

Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld), s 13(1), s 132(3), s 135, s 135(1) s 138(1)

Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100, cited

Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13, cited

Fleming v Skerke, ex parte Skerke [1976] Qd R 48, cited

Fox v Chiu, ex parte Fox [1978] Qd R 88, cited

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114, considered

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Paulger v Hall [2003] 2 Qd R 294; [2002] QCA 353, cited

Rowe v Kemper [2008] QCA 175, cited

Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360, referred to

Director of Public Prosecutions (Queensland) for the respondent

**[1] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Fraser JA. I agree with his Honour's reasons and the orders proposed by his Honour.

[2] MUIR JA: I agree with the reasons of Fraser JA and with the orders he proposes.

[3] FRASER JA: A judge of the District Court dismissed the applicant's appeal under

s 222 of the Justices Act 1886 (Qld) from a decision of a magistrate convicting the applicant of a traffic offence. The applicant now seeks leave to appeal to this Court under s 118(3) of the District Court of Queensland Act 1967 (Qld).**

**[4] The applicant appeared in the Magistrates Court charged by way of complaint and summons that on 3 June 2005 at Enoggera along Wardell Street he drove a motor vehicle on a road with two continuous dividing lines and failed to drive to the left of those dividing lines, in breach of s 132(3) of the Transport Operations (Road Use Management - Road Rules) Regulation 1999 (Qld) (which I will call the

"Road Rules"). The applicant pleaded not guilty. The prosecution called the respondent, Senior Constable Torcetti, as its only witness. The applicant gave evidence in his own defence.

[5] At about 9.40 pm on 3 June 2005 the respondent was driving his police car in an inbound (southerly) direction on South Pine Road straight ahead through traffic lights into Wardell Street. The applicant, who was driving his "maxi-taxi" on Wardell Street in an outbound (northerly) direction, executed a U-turn into the inbound lanes, completed his U-turn in front of the police car, and then turned left into an off-ramp that leads into Pickering Street.

[6] The respondent had to brake reasonably hard to avoid hitting the passenger side of the applicant's taxi. After the applicant stopped his taxi the respondent asked him if there was any emergency reason for his U-turn. The applicant said that he had been threatened by the passengers in his taxi. (The applicant's evidence was that there were six, or "over six", young men, all of whom were drunk in his taxi) The applicant agreed that he had not activated the emergency light on his taxi or contacted his base about the threats. He made no formal complaint about his passengers' conduct.

[7] On the outbound side of Wardell Street there is a "right turn lane" opposite the

off-ramp to enable cars travelling outbound to turn right towards Pickering Street. Just to the north of the right turn lane there is a traffic island that separates the inbound and outbound lanes of Wardell Street. The respondent's evidence was that there were double white lines in this area, interrupted only by the turning lane, and that the applicant executed his U-turn past the turning lane and across the double white lines. He also said that the double white lines ran all the way to the traffic lights where Wardell Street joined South Pine Road further to the north.

[8] In cross-examination of the respondent, the applicant produced two photos that became exhibits 2 and 3. The respondent said that he took these photos shortly before the trial. It seems to have been assumed that there were no relevant changes to the area up to that time. These photos were described and commented upon in the evidence. The respondent agreed that exhibit 2 showed that there were no double white lines on the part of Wardell Street south of the traffic lights where it joins South Pine Road, but he said that the applicant turned further to the south of that area, at a place not shown in exhibit 2. The respondent agreed that exhibit 3 showed the off-ramp and the traffic island. The respondent said that the applicant executed his U-turn over double white lines in an area of Wardell Street to the north of the traffic island and in an area not shown on exhibit 3. When the applicant put to the respondent that the applicant had not crossed over the double white lines but that he had "climbed over an island" the respondent said that he did not see that because he had been concentrating on avoiding a collision with the applicant's taxi.

[9] The applicant's case was that he had not crossed any double white lines but that he had driven over the traffic island. He said that as he passed the off-ramp to Pickering Street his passengers, who were drinking from open beer bottles, said that they wanted to go back to a hotel at which they had earlier stopped. They then "stood to tell me to say, 'turn now.'" The applicant said that he had no choice but to turn. He said that he "picked an island . . . and immediately I swung the vehicle", executing his U-turn in front of the police car. He said that he told the respondent at the scene that he should pursue the applicant's passengers for two reasons: "they had bottles of beer in their hands, which is, I believed was unlawful" and "they stood and threatened me to do what I believed was unlawful". In

cross-examination, the applicant confirmed his evidence-in-chief that all that the passengers said was "turn now". He said that the passengers stood "over me", or stood "from behind", and said "turn now", immediately after which he "just swung the vehicle".

[10] The applicant's evidence was that he executed his U-turn past the right turn lane and as he did so he "clipped" the end of the island. At least two wheels went over the island. He denied that there were double white lines where he turned.

[11] The magistrate found that there was a single continuous line around the traffic island, painted lines across the front of it, and a continuous white line just beyond it and up to the commencement of the double white lines that had been identified by the respondent; that the applicant had executed his U-turn partly over the traffic island, with the driver's side wheels travelling across the island; and that the respondent was honestly mistaken in his evidence that the U-turn had occurred further to the north of the traffic island where there were double white lines..

[12] In reliance on the power of amendment in s 48 of the Justices Act 1886 (Qld), the magistrate ordered an amendment to the charge so that it alleged that on

3 June 2005 at Enoggera along Wardell Street the applicant drove a motor vehicle on a road with a continuous single line, a line of or surrounding a "painted island", in breach of s 138(1) of the Road Rules.

[13] The magistrate rejected the applicant's arguments that he was excused from criminal responsibility under s 25 of the Criminal Code 1899 (Qld) (on the ground that he performed his U-turn 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) or under s 31 (on the ground that the U-turn was reasonably necessary in order to resist actual or threatened violence threatened to the applicant).

[14] The applicant was found guilty of the offence under s 138(1) of the Road Rules. He was fined $150. The magistrate made no order as to court costs.

[15] The applicant's appeal to the District Court under s 222 of the Justices Act 1886 (Qld) was dismissed with costs.

[16] The applicant argues that the District Court judge erred by failing to conduct his own review of the evidence as required by s 223 of the Justices Act 1886 (Qld). It provides:**

(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.

(2) However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.

(3) It the court gives leave under subsection (2), the appeal is -

(a) by way of rehearing on the original evidence; and

**[17] The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect to the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions:

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; Rowe v Kemper [2008] QCA 175 at [5].

[18] The applicant complains that the judge erred in observing that the magistrate's conclusion that there was a continuous white line around the traffic island was an inference that was "open to him". It was submitted that the judge should have decided for himself whether that conclusion was correct. It is, however, apparent from the transcript of the argument and the judge's reasons that his Honour conducted a detailed review of the evidence and concluded that there was no error in the magistrate's conclusion. Furthermore, the respondent gave evidence that double white lines "actually go either side of the island".

[19] In my respectful opinion the judge did err by acceding to a submission made for the respondent that his Honour should apply the principles expressed in

House v The King (1936) 55 CLR 499 at 504-505 to determine whether the magistrate had erred in rejecting the application's defences under the Criminal Code. His Honour held that the "magistrate's discretion as to the alleged threat ... and the defences" had not miscarried. House v The King concerned the principles that applied in a particular form of appeal from the exercise of a judicial discretion to impose a particular sentence. Of course the same principles apply in other contexts, but the question whether any of ss 24, 25 and 31 of the Criminal Code applied did not involve a judicial discretion of the character to which the principles in House v The King were applicable: cf Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13 at [37]- [40]. Rather, it involved the finding of facts and the application of the Code to those facts. In that respect the appeal was governed by the principles identified in paragraph 17 above.

[20] I would nevertheless not grant leave to appeal on this ground because the applicant does not have a reasonable argument that the magistrate erred in concluding that none of the defences he sought to raise were open to him on the evidence.

[21] The applicant argues that the magistrate mistook the facts relating to the applicant's claim that he was threatened. I do not accept that argument. The applicant's evidence was that he decided to execute a U-turn over a traffic island when his passengers, who were drinking from open beer bottles, stood "behind" or "over" him (he gave evidence in both terms) and said "turn now". The applicant did not give evidence in the terms asserted in his submissions in this Court that he "lost control of the vehicle"; that this was what caused him to execute his U-turn; that his passengers "demonstrated their open beer bottles as if to break them over my head"; that they "uttered words of threat if I did not comply"; or that they were "motioning to smash bottles over one's head, and uttering words to the effect, 'do you want to be hit?' and 'do you want to be glassed'". The applicant did not give evidence of any of those allegations even though the magistrate twice told the applicant that he could expand upon his evidence if he wished.

[22] The magistrate, having directed himself that the onus remained on the prosecution to exclude any excuse raised on the evidence beyond reasonable doubt, found that the passengers' conduct when they said "turn now" did not in fact amount to a threat and that the applicant did not have an honest and reasonable belief that there was a threat. Having regard to the advantage the magistrate possessed in seeing and hearing the applicant give evidence, and in the absence of evidence showing that what was said and done by the passengers amounted to threatening words or gestures, no error has been shown in the magistrate's conclusion.

[23] In my opinion, the defences now relied upon by the applicant were not fairly raised on the evidence. I would not grant leave to appeal on this ground.

[24] The applicant seeks leave to appeal also to challenge the propriety of the amendment to the complaint.

[25] Section 48 of the Justices Act 1886 (Qld) provides:**

If at the hearing of a complaint, it appears to the justices that -

(a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or

(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof:

(d) if an objection is taken for any such defect or variance - the justices shall; or

(e) if no such objection is taken - the justices may;

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice."

**[26] The applicant contends that the magistrate was not empowered to amend the charge by substituting a different offence after the expiry of the one year limitation period for making a complaint prescribed by s 52 of the Justices Act 1886 (Qld). That contention is inconsistent with the decision in Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114. In that case the Full Court held that s 48 authorised a magistrate to amend a complaint after the expiry of the limitation period by substituting for a charge of driving under the influence of liquor the different offence of being in charge of a motor vehicle whilst under the influence of liquor. After an extensive analysis of authority it was held (following earlier decisions of the Full Court in Fleming v Skerke, ex parte Skerke [1976] Qd R 48 and Fox v Chiu, ex parte Fox [1978] Qd R 88) that although s 48 did not authorise the substitution of a "completely new" charge, it did authorise the substitution of an offence that was of a "cognate or like nature" with and not "essentially different from" the offence originally charged.

[27] The applicant was originally charged with an offence against s 132(3). The amended complaint charged an offence against s 138(1). Those sections are in the following terms:**

"132(3) A driver on a road with 2 continuous dividing lines must drive to the left of the dividing lines, except as permitted under section 134 or 139(2).

138(1) A driver must not drive on or over a single continuous line, or 2 parallel continuous lines, along a side of or surrounding a painted island, except as permitted under this section or section 139(4)."

**[28] These provisions are in the Road Rules, Part 11, Division 2, which is headed "Keeping to the left". They concern a driver's general obligation to keep to the left on the road. More specifically, each concerns a driver's general obligation not to cross a marked boundary on the road surface. On the evidence there was no possibility of the application of any exception to whichever obligation applied. The maximum penalty is the same for each offence. The amendment of the complaint changed only the allegation as to the nature of the road marking which the applicant crossed. It involved no change to the date, time, area, conduct (driving), or manner of driving (executing a U-turn across the centre of the road) alleged in the original complaint and particularised.

[29] In these circumstances it is right to say that the amended complaint charged "a cognate offence to that originally charged in that it was akin in origin and quality and allied in nature to the offence originally charged". More directly, it may fairly be said that that there was, in terms of s 48, no more than a mere "variance" between the complaint and the evidence adduced at the hearing in support of the complaint.

[30] I would also reject the applicant's contention that the magistrate was not empowered to amend the charge because no application for amendment was made by the prosecutor. Section 48 does not condition the power of amendment upon a prior application for amendment. It has long been accepted that a court may act of its own motion under a provision in this form: Thomson v Lee [1935] VicLawRp 65; (1935) VLR 360 at 364.

[31] The applicant next argues that he was denied natural justice because he was only informed of the amended charge after the completion of the hearing. Reference to the transcript demonstrates, however, that the magistrate raised the question whether the applicant had admitted to a different offence both during the prosecutor's address and during the applicant's address. The relevant provision, s 138(1), was brought to the applicant's attention by the prosecutor. The magistrate clearly alerted the applicant to the possibility that the court might amend the charge to charge the offence admitted in the applicant's evidence. The magistrate said in terms that he brought that to the applicant's attention so that the applicant was not caught by surprise at the end.

[32] Section 49 of the Justices Act 1886 (Qld) confers a discretion on a magistrate to adjourn the hearing after making an amendment if the magistrate considers that the defendant has been deceived or misled by the variance between the complaint and the evidence led at the hearing. That discretion must be exercised if the defendant has been deceived or misled and requests an adjournment. Section 50 requires a copy of the order for amendment to be given to the party against whom the order is made upon request by that party.

[33] I do not accept the applicant's submissions that these sections were contravened. He was not misled or deceived in any way and he did not request a copy of the amended complaint, which was read out by the magistrate as part of his reasons. It was common ground that the applicant had executed a U-turn and on his case he had done so over a traffic island. The record indicates that both the photos produced by the applicant and his cross-examination of the respondent showed the traffic island and road markings which founded the amended charge. The amendment was a very minor one. When asked in this Court, the applicant could not identify any further relevant evidence he could have adduced or any other matter to indicate that he was prejudiced by the course adopted by the magistrate. Rather, his submissions treated the amendment as being unfair simply because the magistrate afforded the prosecution a second opportunity to get the charge right. As to that, I would respectfully adopt the observation made in response to a similar submission by Mann CJ in Thomson v Lee [1935] VicLawRp 65; [1935] VLR 360 at p 364:**

"I quite appreciate what Mr Gorman has said as to its being fair to allow one "run", but it is not part of the duty of the Bench to regard the matter as a sporting contest; it must use its powers in a proper way to uphold the law; and as the magistrates have full power to amend, upon or without application, and ought as I think, to have made the amendment, the order of the Court below will be set aside and the case will be remitted for hearing."

**[34] Nothing I have said is intended to diminish the central importance of ensuring procedural fairness in summary proceedings, but I am not persuaded that there was any error in the judge's conclusion that there was no unfairness to the applicant in making the necessary amendment to reflect the evidence. In the absence of any unfairness it is not a valid objection that the foreshadowed amendment was finally ordered only immediately prior to the conviction of the applicant: Paulger v Hall [2002] QCA 353; [2003] 2 Qd R 294 at [8].

[35] Whilst in other circumstances the procedure adopted here might well create an unnecessary risk of injustice, I consider that no injustice was in fact occasioned by it in the particular circumstances of this case.

Was the wrong offence charged in the amended complaint?

[36] The gist of the offence against s 138(1) alleged in the amended complaint was that the applicant drove over a "painted island". The term "painted island" is defined in the sixth schedule of the Road Rules:**

"****painted island means an area of a road, surrounded by a line or lines (whether broken or continuous), on which there are stripes marked on the road surface in white or another colour contrasting with the colour of the road."

**[37] I referred in paragraph 11 of these reasons to the magistrate's findings of fact with reference to which he concluded that the traffic island was a "painted island." The applicant sought leave to appeal to challenge that conclusion. He contended that this raised traffic island was incapable of constituting a "painted island" as defined.

[38] On any view, the traffic island crossed by the applicant's taxi was a "median strip" as defined in the Road Rules. For median strips s 135 provides an offence cognate with the offence against s 138 of which the applicant was convicted:**

(1) A driver on a road with a median strip must drive to the left of the median strip, unless the driver is -

(a) entering or driving in a median strip parking area; or

(b) required to drive to the right of the median strip by a keep right sign.

median strip does not include a painted island."

**[39] As s 135(2) suggests, that the traffic island was a "median strip" does not necessarily mean that it was not also a "painted island" for the purposes of other sections, such as s 138. The applicant submitted that a diagram included in an example appended to s 138(1) suggests that a "painted island" is on the same level as surrounding road. That is not clear and in any case that example does not dictate the meaning of the section. Section 11 provides that a reference to a "road" includes a reference to a "road-related area" unless otherwise expressly stated, and s 13(1) defines "road related area" as meaning, amongst other things, an area that divides a road. A raised traffic island fulfils those criteria. Therefore, although I refrain from deciding this point, which was not fully argued, the better view seems to be that if a raised traffic island is painted appropriately it may constitute both a "median strip" and a "painted island".

[40] I accept that the applicant's point is arguable, but in my opinion it is not appropriate to grant leave to appeal merely to facilitate a challenge to the magistrate's conclusion that the traffic island was a "painted island". The real issue in the case was whether the applicant had raised a defence under the Criminal Code. As he failed to do so, the consequence of acceptance of the applicant's argument on this issue would appear to be only that the applicant was convicted of an offence against s 138(1) rather than one against s 135. The former does not seem more heinous than the latter and they carry the same penalty. The applicant was unable to identify any adverse consequence that flowed from his conviction that would not also have flowed from a conviction for an offence against s 135(1).

[41] It has been observed in numerous decisions of this Court that leave to appeal will usually be granted under s 118(3) of the District Court of Queensland Act 1968 (Qld) only where there is both a reasonable argument that there is an error to be corrected and an appeal is necessary to correct a substantial injustice to the applicant: see, for example, Arnold Electrical & Data Installations P/L v Logan Area Group Apprenticeship/Traineeship Scheme Ltd [2008] QCA 100.

[42] For the reasons I have given, I do not consider that there is any such injustice and nor I am persuaded that is otherwise appropriate to grant leave to appeal.

[43] I would refuse the application, with costs.**