Ngakyunkwokka v Commissioner of Police [2026] QDC 10

Police Powers and Responsibilities Act 2000 (Qld) s 746, s 747, s 748, s 749, s 754, s 755, s 755A, s 756, s 757

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

DL v The Queen [2018] HCA 26; (2018) 266 CLR 1

Doig v The Commissioner of Police [2016] QDC 320

Forrest v Commissioner of Police [2017] QCA 132

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

Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679

Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Aboriginal and Torres Strait Islander Legal Service for the appellant

Office of the Director of Public Prosecutions for the respondent.

[1] The appellant was charged with an evasion offence at night under s 754(2) and (3)(a) of the Police Powers and Responsibilities Act 2000 (PPRA). He pleaded not guilty.

[2] Following a summary trial, he was convicted and fined $8,330.00, with a conviction recorded, and disqualified from holding or obtaining a driver licence for two years. He appealed against his conviction.

[3] At the hearing of the appeal on 5 February 2026, I allowed the appeal, set aside the conviction, and entered a verdict of not guilty. These are my reasons for that decision.

[4] I have undertaken my own independent assessment of the evidence and concluded that it was unreasonable for the Magistrate to find that the prosecution proved the guilt of the appellant beyond reasonable doubt. The verdict was unreasonable because there was no evidence adduced to prove beyond reasonable doubt one of the elements of the offence. There were other errors of law. The Magistrate erred in considering and applying s 756(9) PPRA, which permitted a defendant to seek leave to rely upon evidence to rebut the statutory presumption that he was the driver of the vehicle. The Magistrate did not give adequate reasons for his decision. Aspects of the conduct of the trial resulted in a breach of procedural fairness and natural justice.

[5] Those grounds are dealt with in more detail below.

[6] To succeed, the appellant must demonstrate that the decision the subject of the appeal is the result of some legal, factual or discretionary error.[1]

[7] The appeal is by way of rehearing on the evidence before the Magistrate (and any other evidence introduced with leave of this court) rather than a hearing de novo.[2] The court must consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.

[8] The rehearing requires this court to conduct a 'real review' of the evidence before the Magistrate and of the Magistrate's reasons to determine whether they have erred in fact or law.[3] Whilst this does not involve a rehearing of the evidence of witnesses, the court has the power to draw inferences from primary facts, including facts not disputed and findings of fact.[4]

[9] On the hearing, the judge may confirm, set aside, or vary the appealed order, or make any other order in the matter the judge considers just: s 225(1) Justices Act 1886 (JA).

[10] At around 8:30pm on 6 November 2024, two police officers in a marked police vehicle were conducting patrols along the main road into Aurukun in Cape York. They were parked off the road with their headlights off, about 70 kilometres from Aurukun.

[11] A vehicle drove past, heading towards Aurukun. It was dark. Police could not see the make, model, or registration number of the vehicle, or the driver.

[12] They drove the police vehicle onto the road and followed, activating the flashing lights and sirens, thereby providing a direction to the other vehicle to stop.

[13] The other vehicle was already some distance away. The officer estimated it was between 100 and 200 metres away at the time the siren and lights were activated, but in the dash camera and body worn camera recordings played, it appeared further away. The vehicle's brake lights came on momentarily before it accelerated, failing to stop.

[14] Police abandoned pursuit of the vehicle but eventually continued driving towards Aurukun. They did not observe any other vehicles on that road.

[15] They contacted other officers who set up a tyre deflation device about five kilometres outside of Aurukun, on the same road. Shortly after 9:00pm, a vehicle passed over the tyre deflation device. It did not stop immediately. Police found the vehicle abandoned about two kilometres ahead. They could not identify the driver.

[16] The next day, police did a search which identified the appellant as the registered owner of that vehicle. Police served on the appellant a type 1 vehicle notice pursuant to section 755 of the PPRA, for an evasion offence at night.

[17] The notice required the appellant to provide to police within 14 business days, unless he had a reasonable excuse, a statutory declaration stating the following:

1. the name and address of the person he believed was driving the vehicle at the time of the offence;

2. if he did not know who was driving, state where he was when the offence happened, the usual location of the vehicle when it is not being used, the name and address of each person known to have access to drive the vehicle, the way they have access, how frequently each drives the vehicle and for how long, whether the potential driver uses the vehicle for a business or private use, whether the vehicle was reported stolen or otherwise being used without consent, and the nature of the inquiries made to find out who was driving the vehicle when the offence occurred.[5]

[18] The effect of the notice was that if the registered owner did not provide the statutory declaration as required, within the time required, they were taken to have been the driver involved in the evasion offence, even though the actual offender may have been someone else: s 756(2) PPRA. The appellant did not provide the statutory declaration.

[19] The appellant was charged with an evasion offence in the night pursuant to s 754(2) and (3)(a) PPRA as follows:

"That on the 6th day of November 2024 at Archer River in the Magistrates Courts District of Cooktown in the State of Queensland one Rex Austin Ngakyunkwokka being the driver of a motor vehicle namely a motor car having been given a direction to stop the said motor vehicle by a police officer namely Alexander RUSSELL exercising a power under an Act and using a police service motor vehicle failed to stop the said motor vehicle as soon as reasonably practicable in circumstances where a reasonable person would stop the motor vehicle

and it is averred that on the 6th of November 2024 the said Rex Austin NGAKYUNKWOKKA is the owner of a vehicle namely a motor car".

[20] Before referring to the evidence at trial, I set out the offence provision in its context.

[21] At the date of the offence, s 754 PPRA provided, relevantly:

(1) This section applies if, in the exercise of a power under an Act, a police officer using a police service motor vehicle gives the driver of another motor vehicle a direction to stop the motor vehicle the driver is driving.

(2) The driver of the motor vehicle must stop the motor vehicle as soon as reasonably practicable if a reasonable person would stop the motor vehicle in the circumstances.

(3) For subsection (2), maximum penalty, paragraph (a), it is a circumstance of aggravation that -

(6) For subsection (2), it is sufficient evidence of the commission of the offence if the evidence is that the driver, in failing to stop, took action to avoid being intercepted by a police officer.

[22] Section 754 is found in Chapter 22, "Provisions about type 1 vehicle related offences." The purpose of that chapter is explained in s 746:

(1) The purpose of this chapter is to enhance community safety by -

(a) reducing the need for police officers to use a police service motor vehicle to pursue another motor vehicle if the driver fails to stop when directed; and

(b) helping police officers investigate type 1 vehicle related offences.

(b) providing a power to help police officers investigate type 1 vehicle related offences; and

(c) enabling a court to order the impoundment or forfeiture of a motor vehicle after the court finds the driver of the motor vehicle guilty of an evasion offence.

[23] The effect of s 748, relevantly, is that a police officer gives a direction to the driver of another motor vehicle if the police officer is in a police vehicle that is being used to attempt to intercept the motor vehicle, the driver of the police vehicle brings it to a position in relation to the other motor vehicle where police can give the driver a direction to stop, and the police officer signals to the driver of the other motor vehicle to stop by giving a physical or audible signal or by displaying a warning light or warning lights and sounding an alarm. A warning light is any of: flashing blue and red lights, a flashing blue light, or another flashing light: s 749.

755 When type 1 vehicle related offence notice may be given to owner of motor vehicle involved in offence

(1) This section applies if, on the investigation of a type 1 vehicle related offence, it appears to a police officer investigating the offence that giving the owner of the motor vehicle involved in the offence a notice under this section may help in the investigation.

(2) The police officer may, by written notice (a type 1 vehicle related offence notice) given to the owner, require the owner to -

(a) make a statutory declaration complying with section 755A; and

(b) give the statutory declaration to either of the following officers within 14 business days after being given the notice -

(ii) the officer in charge of a stated police station or police establishment.

(3) The type 1 vehicle related offence notice must identify the motor vehicle involved in the type 1 vehicle related offence and state all of the following -

(b) the name and address of the person in whose name the motor vehicle was registered, when the offence was committed, under a transport Act or a corresponding law;

(c) that the owner must comply with the requirement within the 14 business days unless the owner has a reasonable excuse;

(d) the consequences if the owner does not comply with the requirement within the 14 business days, including an explanation of the application of section 756 to the owner in any proceeding for the offence;

(e) the nature of the information the owner must include in the statutory declaration;

(4) If the owner is an individual, the police officer must -

(a) personally give the type 1 vehicle related offence notice to the owner; and

(b) when giving the type 1 vehicle related offence notice to the owner, explain to the owner -

(ii) the consequences of not complying with the notice, including the application of section 756 to the owner in any proceeding for the offence.

(5) The owner must comply with the requirement to the extent it requires the owner to give a statutory declaration under subsection (2)(b) unless the owner has a reasonable excuse.

(6) A conviction of the owner for the offence against subsection (5) does not prevent the following -

(a) a proceeding for the type 1 vehicle related offence being started against the owner, including being started because of section 756;

(b) a punishment being imposed on the owner if convicted of the type 1 vehicle related offence.

(7) This section applies to a nominated person in the same way as it applies to an owner.

[25] Section 755A prescribes the information required to be contained in the statutory declaration, relevantly:

755A Information to be stated in statutory declaration responding to type 1 vehicle related offence notice

(1) This section prescribes the information that must be included in a statutory declaration required, under a type 1 vehicle related offence notice, to be made by the owner of a motor vehicle involved in a type 1 vehicle related offence.

(2) The statutory declaration must state the name and address of the person the owner believes was driving the motor vehicle when the type 1 vehicle related offence happened.

(3) However, if the owner does not believe the owner knows who was driving the motor vehicle when the type 1 vehicle related offence happened, the statutory declaration must state all of the following information to the extent it is known by the owner -

(a) where the owner was when the type 1 vehicle related offence happened;

(b) the usual location of the vehicle when it is not being used;

(c) the name and address of each person (a potential driver) known by the owner to have access to drive the vehicle when the type 1 vehicle related offence happened;

(d) the way each potential driver has access to drive the vehicle;

A potential driver possesses a key for the vehicle and has access to where the vehicle is kept.

(e) how frequently each potential driver normally uses the vehicle and for how long each potential driver normally uses the vehicle;

(f) whether each potential driver uses the vehicle in connection with a business or for private use;

(g) whether the vehicle was reported as stolen, or otherwise being used without consent, when the type 1 vehicle related offence happened;

(h) the nature of the inquiries made by the owner to find out who was driving the vehicle when the type 1 vehicle related offence happened.

[26] Section 756 sets out the consequences of non-compliance, relevantly:

756 Who may be prosecuted for type 1 vehicle related offence if no response to type 1 vehicle related offence notice

(a) a police officer gives a type 1 vehicle related offence notice to a person under section 755; and

(b) the person given the notice does not give a statutory declaration as required under that section within the time required under that section.

Under section 755, a statutory declaration must comply with section 755A.

(2) The person is taken to have been the driver of the motor vehicle involved in the relevant type 1 vehicle related offence even though the actual offender may have been someone else.

(3) If the actual offender is someone else, subsection (2) does not affect the liability of the actual offender, but the person and the actual offender can not both be punished for the offence.

(4) In a proceeding for the relevant type 1 vehicle related offence, started against the person because of this section, it is a defence for the person to prove, on the balance of probabilities that the person was not the driver of the motor vehicle involved in the offence when the offence happened.

(5) However, the person may not rely on evidence in the defence that is information the person was required to include in the statutory declaration under section 755A unless -

(a) the person gives the prosecuting authority a notice of the person's intention to seek leave to rely on the evidence at least 21 business days before the day the hearing of the proceeding starts; and

(b) the court grants the person leave to rely on the evidence.

(b) state the grounds on which the person intends to rely to seek leave; and

(c) be accompanied by a statutory declaration that includes the information the person was required to include in the statutory declaration under section 755A.

(7) The court may grant the person leave under subsection (5)(b) only if the court is satisfied -

(a) the person had a reasonable excuse for not giving the statutory declaration as required under section 755(2)(b); or

(b) the evidence came to the person's knowledge more than 14 business days after the person was given the type 1 vehicle related offence notice; or

(c) the interests of justice require that the person be able to rely on the evidence.

(8) Subsection (9) applies for a proceeding mentioned in subsection (4) for a type 1 vehicle related offence that is an offence against section 754(2) with a circumstance of aggravation under section 754(3) or the Criminal Code, section 328A.

(9) The court may grant leave to the person to rely on evidence in the defence that is information the person was required to include in a statutory declaration under section 755A, even if the person has not complied with subsection (5)(a), if the interests of justice require that the person be able to rely on the evidence.

[27] As the appellant did not provide a statutory declaration, he was deemed to be the driver: s 756(2). That was a presumption rebuttable on the balance of probabilities: s 756(4). A person may not rely upon evidence in their defence unless notice is given 21 business days before the hearing and the court grants leave: s 756(5)-(7). The appellant did not do that. But that was not the end of the matter. Because the appellant was charged with a circumstance of aggravation under s 754(3)(a) (which increased the maximum penalty), he could seek leave to rely upon evidence in his defence despite non-compliance with the notice requirement, if the interests of justice required it: s 756(9). That was the provision the appellant's solicitor relied upon at trial.

[28] The prosecution case against the appellant was a circumstantial one and relied upon the statutory presumption in s 756(2). The advocates at trial were not the same as the advocates on appeal.

[29] The prosecution called two police witnesses: Constable Malan[6] was one of the officers who attempted to intercept the vehicle, and Constable Russell deployed the tyre deflation device and served the type 1 vehicle notice. The prosecution also relied upon the dash camera recording from the police vehicle that attempted the intercept, and the body worn camera recordings of Constables Malan and Russell.

[30] The defence case focussed on challenging two aspects of the prosecution case, but also sought to raise a positive defence. The cross examination was directed towards challenging whether the driver of the vehicle failed to stop as soon as reasonably practicable (whether a reasonable person would have been aware of the lights and sirens given the distance and darkness, and whether the flicker of brake lights was explicable by a bump on the road), and whether the vehicle stopped by the tyre deflation device was the same vehicle police had attempted to intercept 30 minutes earlier.

[31] In cross examination, Constable Malan accepted that there were numerous side roads and bush tracks along that stretch of road. He said that he could not definitively say that the vehicle he attempted to intercept was the same vehicle that was spiked by the tyre deflation device. He accepted that the other vehicle's brake lights went on before he activated the police vehicle lights and siren. He accepted that on the road there were four reflector lights to mark a potential bump in the road that people need to take care around. He accepted that the police vehicle jolted when it travelled over that bump, but said there was no need to slow down.

[32] In cross examination, Constable Russell said he was contacted by Constable Malan at about 8:30pm, the tyre deflation device was deployed at 8:58pm, and the vehicle went over it at about 9:07pm.

[33] At the close of the prosecution case, the appellant's solicitor made an oral application pursuant to s 756(9) for leave to adduce evidence of a defence. The Magistrate did not accept that the appellant was entitled to do that, indicating that the appellant's failure to give a statutory declaration or notice of a defence were, in effect, the end of the matter and any defence he may have was extinguished. That was an error of law. The appellant's solicitor attempted to persuade the Magistrate of the proper construction of s 756 but was unsuccessful. The trial continued without a ruling on the issue and the Magistrate called upon the appellant.

[34] The appellant gave evidence. He said that he was not the driver of the vehicle. He was in Aurukun at his cousin's house from 2 or 3pm on 6 November, until he returned home about 10am the next day. When he got home his mum told him his car had been involved in an evasion that night. Immediately he went around the community making enquiries of various people as to who had been driving the car, but no one would say, and he was unable to identify or nominate the driver. Lots of his family members (he referred to 20 cousins) had access to and used his car on a regular basis, including to do shopping. He usually left the keys hanging on the wall in his home where they were accessible to other family members. When he left his home on the afternoon of 6 November to go to his cousin's place, he left the keys hanging on the wall. In the afternoon of 7 November, the police came to his home and served him with the notice and explained he had to nominate someone or he would be blamed because he was the owner.

[35] The appellant's evidence of the police officer's explanation of the type 1 notice is consistent with the body-worn camera recording of Constable Russell in which he is heard to say "If you don't do the stat dec and name a person, you can be charged". In that recording, the officer did not explain that even if the appellant could not identify or nominate the driver, he was still required to do a statutory declaration providing the other information required.

[36] An issue at trial was the extent to which the appellant comprehended the requirements of the type 1 notice, in the sense of completely understood the nature and significance of the notice, what it required him to do, and the consequences of non-compliance. It is not necessary to decide this issue because the appeal must be allowed for the other reasons set out below. But the appellant's evidence was sufficient to create a reasonable doubt about whether he did in fact fully comprehend the requirements of the notice, and therefore whether he had a reasonable excuse for not providing the declaration. His evidence was to the effect that he believed he was required to nominate a driver, and he did not do the declaration because he did not know who was driving. His evidence supported a finding that he did not comprehend or appreciate that even if he could not nominate a driver, he was still required to provide a statutory declaration.

[37] In cross examination and re-examination, the appellant gave further details of other people who he had asked about driving the vehicle, including their names and the frequency with which they used the vehicle.

[38] The Magistrate delivered his decision about 10 minutes after final addresses. He gave a relatively detailed summary of the evidence. He found that the evidence did not prove that the appellant was the driver, but convicted the appellant on the basis that he had failed to provide a statutory declaration, and failed to give notice of a defence, within the prescribed period. He was satisfied that the vehicle the police attempted to intercept was the same vehicle stopped by the tyre deflation device. He was satisfied that the police vehicle's lights and siren would have been seen by a reasonable person driving the vehicle and that the vehicle had failed to stop.

Verdict unreasonable and not supported by the evidence

[39] At the hearing of the appeal the appellant sought, and was granted, leave to amend its grounds of appeal to add a ground that the verdict was unreasonable and not supported by the evidence, because the prosecution did not adduce evidence to prove an element of the offence. The application for leave was unopposed.

[40] In order to convict the appellant, the prosecution had to prove beyond reasonable doubt the following elements of the offence:[7]

2. a police officer using a police service motor vehicle;

3. gave the defendant a direction to stop the motor vehicle he was driving;

4. the defendant failed to stop the motor vehicle as soon as reasonably practicable;

5. if a reasonable person would stop the motor vehicle in the circumstances.

[41] There was no evidence to prove the first element of the offence: that the police officer who gave the direction to stop was acting "in the exercise of a power under an Act".

[42] The police officer did not give any evidence of the reason for seeking to stop the car and there was no evidence from which an inference could reasonably be drawn. The highest the evidence rose was that the officers were "conducting patrols". The officer was not asked any questions in his evidence in chief about the power he was purporting to exercise in attempting to intercept the vehicle. There was no evidence that the vehicle was speeding or otherwise driving in a manner that attracted police attention or that police attempted to intercept the vehicle "for monitoring or enforcing a liquor provision" or for enforcing a Transport Act requirement or to conduct a breath test or one of the many other prescribed purposes for which police may lawfully stop a vehicle under s 60 PPRA.

[43] It would not have been difficult to adduce such evidence. But it was not adduced. And the result was there was no evidence on which the Magistrate could have concluded, nor evidence from which an inference could be drawn, that the police officer who attempted to intercept the vehicle was acting in the exercise of a power under an Act.

[44] The Magistrate was not assisted by submissions identifying the elements of the offence, or the evidence relied upon to prove them.

[45] The Magistrate's reasons do not contain any reference to proof of the elements of the offence, nor any express findings that the elements were proved.

[46] I accept the appellant's contention, which the respondent conceded, that the verdict is unreasonable because there was no evidence adduced to prove the element of the offence that the police officer who attempted to intercept the vehicle was acting in the exercise of a power under an Act. In those circumstances the Magistrate was required to find the appellant not guilty.

[47] Therefore, the appropriate order is not to remit the proceeding for rehearing but to enter a verdict of not guilty.

[48] Given that the appeal must succeed on the unreasonable verdict ground, it is not necessary to determine the other grounds of appeal, but I have dealt with them below in an abbreviated way.

Failure to properly consider and apply s 756(9) PPRA

[49] I have already noted that the Magistrate erred in law in finding at the close of the prosecution case that the appellant was precluded from applying for leave pursuant to s 756(9) to adduce evidence of a defence because he did not provide a statutory declaration or notice of a defence.

[50] Later in the hearing the appellant's solicitor refreshed the application for leave, referring the Magistrate to the terms of s 756(9) and submitting that the relevant consideration was the interests of justice. The Magistrate did not rule on the application.

[51] In his reasons, the Magistrate did not expressly determine or give reasons for any decision on the application for leave pursuant to s 756(9).

[52] The prosecution case was not strong. There was no evidence identifying the first vehicle or its driver. The prosecution case was circumstantial, requiring the drawing of an inference that the driver of the first vehicle was aware of the direction to stop in circumstances where the vehicle was some distance away, it was dark, and the vehicle may have braked because of a hazard in the road rather than because the driver was aware of the direction. It also required the drawing of an inference that the vehicle ultimately stopped by the tyre deflation device was the same vehicle attempted to be intercepted, when those events occurred 30 minutes apart, and in the intervening 65 kilometres there were side roads coming off the road by which the vehicle could have left, or another vehicle joined, the road. The relative strength (or lack thereof) of the prosecution case was a relevant matter to take into account in the exercise of the discretion pursuant to s 756(9), and favoured leave being granted.

[53] The appellant's evidence that he was not the driver was highly probative. That evidence, together with his evidence of the steps he immediately took to try to identify the driver, and his evidence of his (lack of) full comprehension of the requirements of the type 1 vehicle notice, were all matters that weighed in favour of granting leave to rely upon a defence under s 756(9).

[54] The Magistrate should have granted leave to adduce the evidence in defence and the evidence was sufficient to create a reasonable doubt that the appellant was the driver. The appellant should have been acquitted. The respondent conceded this error of law. This ground of appeal succeeds.

Failure to afford procedural fairness and breach of natural justice

[55] This ground is related to the one above. The transcript of hearing discloses the Magistrate repeatedly interrupting the appellant's solicitor's questioning during cross-examination and evidence in chief. He prevented the appellant's solicitor asking permissible questions. He repeatedly interrupted the appellant's solicitor while she was making submissions. He told the prosecutor to object to her questions. He made inappropriate and intemperate remarks to the appellant's solicitor, describing the defence as "something from Bart Simpson", "very wrong" and "fanciful", saying "Jesus Christ" and "My god", telling the appellant's solicitor she was running cases (plural) in a "very, very odd" way, and that the Magistrate was "not the only one to say that".

[56] The conduct of the trial was such that a fair-minded and reasonably informed observer might consider that the Magistrate was not approaching his task with a sufficient level of impartiality. A consequence of this conduct was that the appellant's solicitor was not able to properly advance her submissions on the application for leave pursuant to s 756(9).

[57] As the respondent conceded, this conduct rendered the trial procedurally unfair and constituted an error of law. This ground of appeal succeeds.

[58] The adequacy of reasons will depend upon an assessment of the issues in the cases, including the extent to which they were relied upon by counsel.[8]

[59] The application for leave under s 756(9) was central to the defence case at trial. The Magistrate's reasons did not: identify the elements of the offence the prosecution were required to prove; make findings as to whether he was satisfied beyond reasonable doubt of each element of the offence; consider the statutory provisions in issue in the trial; rule on the application for leave pursuant to s 756(9); or give reasons for that.

[60] The Magistrate misdirected himself by expressly relying in his reasons upon s 755(5) and finding that the appellant had not established a reasonable excuse for not complying with the type 1 notice, when the test he was required to apply under s 756(9) was whether it was in the interests of justice to be able to rely upon the evidence.

[61] The Magistrate misstated the appellant's evidence on one issue, finding that the appellant gave evidence that he did not know how long it took him to get back, when he gave clear evidence of what time he left home and what time he returned.

[62] The Magistrate appeared to draw an adverse inference against the appellant on the basis of his unsurprised demeanour when the police attended and served him with the notice. But there was unchallenged evidence, consistent with innocence, capable of explaining his reaction - that the appellant already knew the car had been used in an evasion because family members had told him that - which the Magistrate did not refer to, or give reasons for not accepting.

[63] After finding the appellant guilty and sentencing him,[9] the Magistrate appeared to impermissibly seek to bolster his reasons for conviction by referring to the appellant's criminal history; finding that because the appellant had a previous conviction for a like offence, the appellant would have understood his obligations under the type 1 notice.

[64] As the respondent conceded, collectively these matters amounted to a failure to give adequate reasons which constituted an error of law. This ground of appeal succeeds.

[65] This issue arose in oral submissions. The charge averred that the evasion offence occurred "in the night": s 754(3)(a). "Night" is defined in Schedule 6 Definitions PPRA to mean the interval between 9pm on one day and 6am on the next day.

[66] The evidence established (and there was no dispute) that the offence was alleged to have been committed at 8:35pm. The evidence was incapable of proving the circumstance of aggravation because it did not fall within the statutory definition of "night".

[67] No party addressed the Magistrate on the circumstance of aggravation and he did not make any findings about it. He simply convicted the appellant of the offence as charged with that circumstance of aggravation. That was an error of law.

[68] This issue also arose in oral submissions. The bench charge sheet named the wrong police officer as the officer who gave the direction to stop. This error was not identified during the trial so the bench charge sheet was never amended.

[69] If the appeal had not succeeded on the unreasonable verdict ground, the other errors of law were such that the appropriate order would have been to remit the matter to the Magistrates Court for rehearing, before a different Magistrate. Given the findings above with respect to procedural fairness and inadequate reasons, it would not have been appropriate for the trial to be reheard by the same Magistrate.

1. [1] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180 [23] followed in Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, 490 per Muir J (Fraser JA & Mullins J agreeing). See also White v Commissioner of Police [2014] QCA 121 [8] per Morrison JA (Muir JA & Atkinson J agreeing).

[2] Section 223 Justices Act 1886 (Qld).

1. [3] Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679, 686-687; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126 [25]; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5.

[4] Teelow v Commissioner of Police [2009] QCA 84; [2009] 2 Qd R 489, 493.

[6] The spelling in the transcript. The bench charge sheet refers to Constable Ismalun. It is unclear whether this is the same officer.

[7] Section 754(1) and (2) PPRA; See also Doig v The Commissioner of Police [2016] QDC 320 at [23] involving an earlier version of s 754, and the Magistrates Court Criminal Law Benchbook.

[8] DL v The Queen [2018] HCA 26; (2018) 266 CLR 1, 13 [33].

[9] The transcript of the sentencing submissions and sentencing decision were not before the court.