DISTRICT COURT OF QUEENSLAND

CITATION:	Walden v Queensland Police Service [2019] QDC 63	
PARTIES:	WALDEN, Robert John
(appellant)
v
QUEENSLAND POLICE SERVICE
(respondent)	
FILE NO/S:	D3006/2018	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	
Magistrates Court Wynnum	
DELIVERED ON:	8 May 2019	
DELIVERED AT:	Brisbane	
HEARING DATE:	22 March 2019	
JUDGE:	Devereaux SC DCJ	
ORDER:	1.	The decision of the learned magistrate is varied by setting aside the conviction and sentence under Transport Operations (Road Use Management) Act 1995 (Qld), s 92(1)(a). 
2.	The appellant is discharged on that charge.
3.	Appeal otherwise dismissed.	
CATCHWORDS:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appellant was convicted of an offence against Transport Operations (Road Use Management) Act 1995 (Qld) s 92(1)(a) – where the charge was incorrectly drawn – where no application to amend - whether the Magistrate erred by failing to apply the appropriate test for the offence - whether the evidence supported the offence charged under s 92
Justices Act 1886 (Qld), s 222
Transport Operations (Road Use Management) Act 1995 (Qld), s 83, s 92(1)(a), s 93
Dyers v The Queen (2002) 210 CLR 285, cited
Fox v Percy (2003) 214 CLR 118, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Loveday v Ayre and Ayre; Ex parte Ayre and Ayre [1955] St R Qd 264, cited
R v Makary [2018] QCA 258, cited
R v Quagliata [2019] QCA 45, cited	
COUNSEL:	M White for the appellant
A Vanenn (sol) for the respondent	
SOLICITORS:	Butler McDermott for the appellant
Director of Public Prosecutions for the respondent	

Introduction
[1]	On 27 July 2018 at the Wynnum Magistrates Court, the appellant was convicted of the following offences:
a)	driving without due care and attention, in contravention of section 83 of the Transport Operations (Road Use Management) Act 1995 (Qld) (the Act) (first charge); and
b)	failing to stop at a road incident, in contravention of section 92(1)(a) of the Act (second charge).
[2]	On 3 August 2018, the learned magistrate ordered as follows:
a)	for the charge of driving without due care and attention, a fine of $600.00; and
b)	for the charge of failing to stop at a road incident, a fine of $500 and that the appellant be disqualified from holding or obtaining a Queensland driver licence for a period of six months.
[3]	The appellant appeals the convictions and sentence on the following grounds:
a)	that the learned Magistrate erred by finding that the state of the evidence did not raise or leave open the defence of mistake of fact in respect of the driving without due care and attention charge;
b)	that the learned Magistrate erred by failing to consider the rule in Jones v Dunkel in respect of the evidence adduced by the Respondent at trial;
c)	that the learned Magistrate erred by failing to apply the appropriate test for the offence of failing to stop at a road incident;
d)	that the learned Magistrate erred by finding that an incident does not need to result in death or injury for the purposes of an offence against section 92(1)(a) of the Act;
e)	that the learned Magistrate erred by applying a test consistent with section 93, instead of section 92(1)(a) of the Act;
f)	that the learned Magistrate erred by finding that the complainant Bo Li had suffered an injury for the purposes of the charge of failing to stop at a road incident;
g)	that the learned Magistrate erred by finding that the Appellant failed to stop his vehicle following the incident;
h)	that the learned Magistrate erred by failing to direct the prosecution to confine its particulars;
i)	that findings of guilt in respect of each offence were unreasonable, and cannot be supported having regard to the evidence;
j)	that the learned Magistrate erred by finding that the offence of failing to stop at a road incident carried a minimum licence disqualification period of six months; and
k)	that the sentence imposed by the learned Magistrate in respect of the offence of failing to stop at a road incident was manifestly excessive.
[4]	The grounds reduce to: a point about the defence of mistake of fact concerning the first charge; a Jones v Dunkel point; five legal and factual grounds concerning the second charge; a particulars point; unreasonable verdicts; and, two sentence grounds concerning the second charge.
[5]	The appeal is brought under s 222 of the Justices Act 1886 (Qld). The appeal is by way of rehearing. The record includes the transcripts of proceedings and exhibits tendered in the Magistrates Court. Both parties refer me to Fox v Percy (2003) 214 CLR 118 at [25] on the nature of a rehearing.
The Evidence
[6]	Before the first witness was called, the appellant’s solicitor asked for particulars of the first charge. The prosecutor replied that, “on the Gateway Motorway, Murarrie, the defendant’s vehicle truck collided with a motor vehicle and then didn’t remain at the scene of that incident.” These were not adequate particulars of the first charge. I will return to the question of particulars.
[7]	The prosecution’s first witness, Mr Hansen, recalled driving his three-ton truck south over the Gateway Bridge at about 9:25 AM on 6 July 2017. After passing under the toll point, he was travelling in one of the two centre lanes of four lanes. He was behind a black car when a truck from the lane to his right moved towards the black car: “…whether it hit or not I’m not too sure but then the car’s gone out, like, freaked out and [indistinct] and then he’s gone back into the car [sic. truck] and had, like, dragged the car along the road….” He noticed no brake lights on the truck and commented, “I don’t think he was aware that it could have even happened”. After the black car went off to the left, it over-corrected and came back into the side of the truck. The black car ended up moving across lanes to the left and into the guard rail. Mr Hansen stopped behind it. After checking that everyone was alright, he and his passengers drove off again. He continued down the Gateway Motorway and did not see the truck again.
[8]	In cross-examination, the appellant’s solicitor put to Mr Hansen that just before the collision, the black vehicle and the appellant’s truck were separated by a vacant lane and that the black car had moved into the middle lane, contributing to the collision. Mr Hansen’s evidence was that, though the black car may have merged into the centre lane just prior to the collision, at the time of the collision the black car “…was not coming in, he was travelling straight”. 
[9]	Mr Li was the driver of the black car, a Passat CC.  He had picked up a friend from the airport.  He moved from what he described as lane two into lane three.  His passenger alerted him to the appellant’s truck being too close and in response Mr Li sped up.  The other vehicle was “also trying to transfer into the lane three as well” and struck the back part of Mr Li’s car. Mr Li said he had been in the lane for about 30 seconds prior to the collision.  After the impact, he lost control of his car.
[10]	Exhibit 2 is a photograph of Mr Li’s car that shows damage to the back driver’s side door and wheel arch, but it is not clear whether that damage was caused by an initial impact or, as described by Mr Hansen, after Mr Li lost control, over-corrected and hit the truck.  The damage shown in the photograph is consistent with Mr Li’s evidence.  He said the damage to the back door was caused by the initial impact.
[11]	Asked whether he was hurt in the incident, Mr Li said, “Yeah, I got kind of like I feel bad of my – my neck and back, like in second there.  I didn’t feel hurting that time.”
[12]	Under cross-examination, it was put to Mr Li that in a statement to police on 8 March 2018, he had said his car was in the lane for 10 seconds before the impact.  He replied, “I didn’t remember that much … the only thing I remember was the whole of my car – the whole body of my car is already in the lane 3.”
[13]	Sergeant Taylor spoke to the appellant on 20 August 2017.  The recording of the discussion was Exhibit 4.  The appellant’s account of the incident was that, after passing a white van, “I went back over in front of him.  There was no-one in that lane in front of him, so the car that I supposedly hit must have changed lanes at the same time as I did.”
[14]	After the incident, the appellant told Sergeant Taylor, he could not easily pull over so he went to “where Lytton Road comes out”, stopped and waited for about three quarters of an hour but when no-one came, he continued on his journey.
[15]	Later in the discussion, the appellant repeated to Sergeant Taylor that “as far as I’m concerned there was no car there when I came back in front of the van” and that the other car must have changed lanes at the same time as he did.
[16]	In cross-examination, Sergeant Taylor agreed he had not provided photos of the toll cameras, which he conceded would exist.  Shown records, he accepted they showed the appellant’s vehicle passed through the toll points at Murarrie at 9.25 am and at Kuraby at 10.29 am.
Mistake of fact
[17]	The appellant argues that the learned magistrate was wrong not to consider that his statements to Sergeant Taylor raised the defence of honest and reasonable mistake, particularly his statement that, “There was no-one in that lane in front of him, so the car that I supposedly hit must have changed lanes at the same time as I did”.
[18]	The learned magistrate made certain remarks that may be taken as asserting that a defendant raising mistake of fact must give evidence of a relevant belief. If that was his Honour’s view, it was wrong. The relevant state of mind may be inferred from all of the evidence. 
[19]	Recently, in R v Makary [2018] QCA 258 at [55], Sofronoff P said:
“Where s 24 [of the Criminal Code 1899] arises for a jury’s consideration the onus of proof lies upon the prosecution to exclude mistake as an excuse. I have referred to the requirement that the evidence must fairly and realistically raise s 24 for consideration before it can become a matter that the jury must consider. This requirement is sometimes referred to as an “evidential onus” that lies on an accused. That is an expression which is apt to confuse if it is understood literally because an accused bears no onus at all in relation to s 24. The excuse afforded by that provision may have to be excluded by the prosecution even if the accused does not invoke the section. The expression is used to refer to the requirement that there be facts in the case that justify consideration of the issue by the jury. Because it is in the interests of an accused for s 24 to be a matter for consideration and because, in a practical sense, an accused may have to persuade a trial judge that s 24 has arisen for consideration, it is easy to slip into an acceptance of the invalid premise that it is the accused who must raise facts, by way of “discharging the evidential onus”, in order to raise the “defence”. In truth, the only question is whether there is evidence which raises the issue of mistaken belief for the jury’s consideration so that the prosecution must exclude the excuse afforded by s 24.”
[20]	In the same case at [90], McMurdo JA said: 
“Because the onus of proof remains on the prosecution, I would not describe the requirement as going as far as a need for evidence on which there could be a finding that the mistaken belief was held. I prefer the formulation by McPherson JA in R v Millar [2000] 1 Qd R 437 at 439, which is that there must be evidence on which the jury could legitimately entertain a reasonable doubt about whether the defendant honestly and reasonably believed the complainant had consented.”
[21]	In Loveday v Ayre and Ayre; Ex parte Ayre and Ayre [1955] St R Qd 264 at 268, Philp J said:
“Of course the section does not operate unless there be some evidence, looking at the case as a whole, of operative mistake.”
[22]	However, the learned magistrate correctly identified the real issue: “the question is, at the point of contact was the driver of the truck showing sufficient due car and attention.”
[23]	That the defendant moved across a lane without seeing Mr Li’s car is not evidence of an honest and reasonable but mistaken belief in the existence of things. The statements to police did not raise the issue. Rather, the statements are evidence of driving without due care.
Unreasonable verdict on first charge
[24]	Crucially, Mr Li is firm that his car was wholly in the lane before the appellant started moving his vehicle across.  It was not a case of two vehicles a lane apart simultaneously moving into the vacant lane between them.  Mr Hansen corroborates Mr Li on this point.  Indeed, Mr Hansen said the appellant’s truck only briefly entered Mr Li’s lane.  I have already given my reasons for finding that the evidence does not support a defence that the appellant acted under an honest and reasonable but mistaken belief in the existence of things.
[25]	Upon my review of the record, I am satisfied beyond reasonable doubt the evidence proved the appellant moved into the lane occupied by Mr Li and did so without paying due care and attention.  He is guilty of the charge of driving without due care and attention.
Jones v Dunkel
[26]	The appellant submits the trial miscarried because the prosecution did not call evidence from Mr Li’s passengers nor electronic, video or photographic evidence of the stretch of road. The appellant did not contend that the magistrate should have inferred that the absent evidence would have damaged the prosecution case but submitted, in the written outline, that the absence of this evidence “should have at least factored into an assessment as to whether his Honour should have entertained reasonable doubt as to the guilt of the appellant.”
[27]	Sergeant Taylor agreed he produced no photos from the toll cameras although they would exist. He accepted facts put to him in cross-examination, which recorded the times the defendant’s vehicle passed through certain toll points. These were, I understand, relevant to the defendant’s case about his movements after the collision.
[28]	Sergeant Taylor said he contacted the reporting officer after speaking to the appellant.  He apparently sought statements from the drivers, including Mr Hansen and his sons.  It is not clear but it seems statements were not taken from Mr Li’s passengers.  
[29]	In the result, evidence was received from Mr Li and Mr Hansen. Absent other witnesses, given such conflict in the accounts as there was, it was necessary to scrutinise carefully the evidence of the prosecution witnesses. I am not satisfied the appellant has established how the trial has miscarried because of the failure to call the potential evidence. I have already recorded my view that the evidence proved the appellant was guilty of the first charge.  
[30]	It is unnecessary to discuss in great detail the Jones v Dunkel direction and its application in criminal cases but I repeat two passages from the reasons of Gaudron and Hayne JJ in Dyers v The Queen (2002) 210 CLR 285 at [6] and [11]:
“Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution's failure to call the person in question was in breach of the prosecution's duty to call all material witnesses.
…
As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must act "with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused's trial is a fair one" (emphasis added).  That requires the prosecution to call all available material witnesses unless there is some good reason not to do so.  The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person.”
Particulars
[31]	I have noted the inadequacy of the particulars provided for the first charge. Particulars have an important practical purpose. In R v Quagliata [2019] QCA 45, Bond J at [15] said “…as is trite, the purpose of particulars is to give an accused sufficient indication of the nature of the case he or she is called on to meet.” In this case, the appellant was entitled to a clear answer to the question: precisely what acts of mine do you say amount to the commission of the offence? He was not told, even at the start of his trial, that the case against him was that he drove his truck into another lane without looking properly and thereby caused a collision with Mr Li’s car. Despite this failure, there has been no miscarriage of justice because it was obviously clear to the defendant that that was the case against him from the first meeting with Sergeant Taylor.
The second charge
[32]	The bench charge sheet reads as follows:
“Charge 2 of 2 – 
TRANSPORT OPERATIONS (RUM) ACT 1995 92(1)(A) DRIVER OF ANY MOTOR VEHICLE/VEHICLE/TRAM OR ANIMAL ON A ROAD FAILING TO STOP AT ROAD INCIDENT
That on the 6th day of July 2017 at Murarrie in the Magistrates Courts District of Brisbane in the State of Queensland one Robert John Walden being the driver of a vehicle namely a motor truck involved on a road namely Gateway Motorway Murarrie in an incident resulting in damage to property namely motor car Queensland registration SOS666 did fail to immediately stop such vehicle”
[33]	This pleading did not correspond with the terms of s 92(1)(a) of the Act.  The Transport and Other Legislation Amendment Act 2014 amended the Act such that s 92 provided at the relevant time, being 6 July 2017, that:
 (1)	The driver of any vehicle, tram or animal involved on any road, or of any motor vehicle involved elsewhere than on a road, in an incident resulting in injury to or death of any person shall—
(a)	immediately stop the vehicle, tram or animal; and
(b)	if any person is injured—
(i)	remain at or near the scene of the incident and immediately render such assistance as the driver can to the injured person; and
(ii)	make reasonable endeavours to obtain such medical and other aid as may reasonably be required for the injured person; and
(c)	if any person is dead or apparently dead—
(i)	remain at or near the scene of the incident; and
(ii)	exhibit proper respect for the person’s body and take whatever steps are reasonably practicable to have the body removed to an appropriate place.
Maximum penalty—
(a)	if the incident results in the death of or grievous bodily harm to a person—120 penalty units or 3 years imprisonment; or
(b)	otherwise—20 penalty units or 1 year’s imprisonment.
[34]	Bringing this charge to the facts of this case, had it been properly pleaded, the prosecution was required to prove the appellant was the driver of a vehicle involved on a road in an incident that resulted in injury to Mr Li and he failed to stop.
[35]	I will not traverse all the discussions between the appellant’s solicitor and the magistrate.  There was confusion in the court’s mind about the charge, not unreasonably given that the pleading did not match the section.  The appellant’s solicitor drew s 93 of the Act to the magistrate’s attention.  It provides, relevantly, that a driver involved in a crash on a road must stop at the scene of the crash and give particulars to another driver, any injured person or owner of damaged property.  However, that provision was introduced by s 52 of the Heavy Vehicle National Law and Other Legislation Amendment Act 2018 (Qld) and so was not in force at the relevant date, being 6 July 2017.  A similar provision was in force at the time, contained in the Transport Operations (Road Use Management – Road Rules) Regulation 2009 at s 287.
[36]	No attempt was made, at trial or on appeal, to amend the charge.  The learned magistrate nonetheless proceeded to convict the appellant of the charge and sentence as if it were properly pleaded under s 92(1)(a), imposing a fine and a disqualification of 6 months. The conviction cannot stand in these circumstances.  The appellant was tried, convicted and sentenced as if the charge were under s 92, although it was not pleaded that way.  
[37]	The learned magistrate also incorrectly decided that it was unnecessary to make a finding that Mr Li was injured and convicted the appellant on that basis.  While the learned magistrate did not consider that it was necessary to make such a finding, his Honour did comment that there was “clear evidence” of an injury to Mr Li.  There was insufficient evidence of injury to support any such comment.  Mr Li’s evidence was “Yeah, I got kind of like I feel bad of my – my neck and back, like in second there. I didn’t feel like hurting that time.” Mr Hansen’s evidence is that he stopped his vehicle after the incident “just to make sure everyone was alright.  When they were, I – we drove off again.” This evidence does not support that Mr Li sustained an injury.
[38]	The decision to convict the appellant of the second charge and the penalties imposed must be set aside.
Order
[39]	The decision of the learned Magistrate is varied by setting aside the conviction and sentence imposed on the second charge.