#163 Cloncurry Evade Police

Join Wiseman Lawyers Traffic Lawyer Andrew Wiseman at Cloncurry Magistrates Court as he represents a client charged with Evade Police and Drive Without Due Care and Attention. Watch Andrew explain what happened in the courtroom, along with the outcome which he achieved and how he achieved it.

All right. Today I'm at Cloncurry Magistrates Court, about an hour and a half east of Mount Isa. So I've flew up to Mount Isa yesterday, stayed at Mount Isa, drove from Mount Isa to Cloncurry this morning. And I met my client at court. My client was in quite a bit of strife. Four charges in total. Most serious was evade police. Basically, it's technically a fail to stop, but as the name suggest, evade police, it's police put the lights on, you don't stop and/or you accelerate and then police call it off because it's not safe to have a police chase. Say evade police, there was also one of what's colloquially known as careless driving, but it's technically, did drive without due care and attention and also charges of unregistered and uninsured vehicle, which you know, those two are just fines.

Going back a step, my client contacted me at the outset before he'd even been charged. What had happened was in a lot of these rural areas where there's cattle farms and the likes, a cattle farm will have an old unregistered vehicle and it'll be missing your lights and it's not roadworthy, it's not for road use. But basically it's used for mustering cattle essentially. So instead of riding a horse, you're on this old land cruiser or whatever it is driving around a farm, private property, getting the cattle to go where you want them to go and do what you want them to do.

In any event, that vehicle had been transported to an address at Cloncurry for the sole purpose of the vehicle being serviced. So as I said it's not used for driving around the roads, it was transported to Cloncurry to be serviced and that's what my client and his friend were doing. They spent the day just doing a service on the vehicle, like he would any other vehicle. Foolishly though, after the service, they thought it'd be a good idea to test drive the vehicle. And when I say this vehicle is unroadworthy, it was visibly unroadworthy. If you drove past it, you'd think 'what is that thing doing on the road?' And that's exactly what the police thought. They've done a U-turn, turned their lights on and my client's panicked and effectively hasn't stopped when directed. Police ceased the pursuit [inaudible] better word and ultimately he was tracked down.

Initially they thought it was his mate who was the passenger who was driving and that's prompted my client to make contact with me and say, look, police are about to charge my friend for something that I've done, what do I do? I want to do the right thing. So I've basically reached out to Cloncurry Police, facilitated an interview that I participated in. I'm in Brisbane, so I didn't fly up here for the interview, but I participated in the interview by way of teleconference, which is fancy talk for loud speaker on the police desk. And I didn't, I don't particularly meddle with police interviews, I just make sure my client doesn't say more than he's necessary. Well, if you go to McDonald's, you don't need to speak for half an hour to tell them what they need to know. If you know what I'm saying?

So anyway, my biggest concern was making sure... Because when the police were having initial discussions with us, the word dangerous kept coming up, specifically with regard to the state of the vehicle. So there was a very high risk that there was going to be a charge of dangerous driving as well as evade police, as well as the unlicensed and sorry, unregistered and uninsured. So my greatest concern was trying to make sure there was no dangerous driving charge because unlike normal traffic offences, dangerous drivings a criminal offence. So you end up with a criminal conviction if you get charged with dangerous driving. So what I wanted to try to do was persuade the police to, instead of dangerous driving, go down the dig drive without due care attention route, which is a traffic offence, not a criminal offence. There's no mandatory disqualification on that charge, whereas with dangerous driving, there's a mandatory minimum of six months.

I've just [inaudible] interview and it was quite... everyone was being civil and cooperative, but I had to sort of be a bit proactive in trying to get this idea of dangerous driving off the table. And I won't get into details now about what I discussed in that regard, but this guy's just made a stupid mistake. It's not like he was ramming letter boxes and going on a rampage. Anyway, that was a fruitful discussion that interview, the police moulded over and then ultimately decided to charge him with the lower charge, careless driving, which carries no mandatory disqualification and isn't a criminal offence, it's a traffic offence, but obviously he also was charged with evade police and unlicensed and sorry, unregistered and uninsured. Basically with the most serious one was the evade police.

So Campbell Newman amended the... Well introduced the evade police law as it's name today. And with that charge, the magistrate's got two choices. 50 days in a correctional facility, say jail. And the law specifically says wholly served in a correctional facility. So there's no... The magistrate can't give you suspended sentence, they can't give you immediate parole. It must be actual jail for no less than 50 days, or what's essentially a $6500 fine. Up until literally 20 days ago, so up until 10th of August, the magistrate had the power of converting that $6500 fine into a community service order or probation or something like that. So if people couldn't afford $6500, that was an option the magistrate had to them, but it wasn't legislation that allowed that, it was case law or the case law's interpretation of legislation and the relevant cases that gave that power were overturned by the Court of Appeal on the 10th of August.

So poor timing I suppose, but my client's greatest concern was not going to jail as opposed to wanting probation. So as I said, as of 10 August, literally 20 days ago, no, my apologies literally 10 days ago, the case law, Court of Appeal ruled that community service and probation could not be given instead of a fine. So the law is back to what it was initially. It's either got to be minimum 50 days in a wholly served in a correctional facility or $6500 fine. Needless to say, my job is what I've tried to make sure we didn't go to jail for 50 days. There's also mandatory disqualification periods. Absolute minimum is two years for evade police. So absolute best case scenario today, was not going to jail, the $6500 fine plus fines for the other offences and minimum two year disqualification.

The magistrate's got the power to disqualify for the careless driving as well, but it's not mandatory. I got my client to do a number of things, the course we get everyone to do, could be done online. References, we gave them a template to give to people to get references and make sure they contain the key information that they need to. You can't just have 'to whom and make concern' and just talk about the fishing trip you did with this guy, it's got to be directed to the magistrate, it's got to be specifically addressing... They got to state they're aware of the charges and the references written with that in mind and then you go on about how great a bloke or lady the person is.

The prosecutor quite frankly, was pretty keen for some form of imprisonment. I had a chat with her before court started and just trying to get a feel on which direction she was going. And she was pretty keen for some form of imprisonment, not necessarily actual imprisonment, but like when I say you can't get suspended sentence or immediate parole for the evade, he could have been given that for the careless. So, and that was sort of the direction the prosecutor was going in. Anyway, because this is an ever evolving area of law, when there's a risk of jail, I always do lengthy written submissions of no less than 10 cases up of situations where people have offended in a similar way, not gone to jail.

I had that with me, ready to go. I gave it to the prosecutor beforehand and I normally don't hand it up unless the wheels start falling off. You don't want to go take a machine gun to an air off or fight, but at the same time, if you get the feeling that the other side's going to pull the machine gun out, you need to address it. So I gave the prosecutor those written submissions beforehand, and I sort of thought I'll make a judgement call when I go in as to whether I'll hand them up the magistrate at the outset. I decided to just do it in a staggered approach. So gently, gently and then if I need to ramp it up and get into the case law, I will. I made pretty forceful submissions at the outset, and I ultimately got the magistrate on side pretty quickly, based on my verbal submissions alone. So I didn't end up handing up the written submissions, but at the same time, the written submissions that I gave the prosecutor, I suppose, I guess assisted in me, getting them on side is what I'm getting at.

Anyway, long story short, a) he didn't go to jail, so obviously he's very happy. B) he didn't receive disqualification for the careless driving, fine only. Fine only for the unregistered, uninsured and he got the minimum two year disqualification for the evade police. So obviously he's off the road for two years, which isn't ideal, but it's a lot more ideal than sitting in jail for no less than 50 days. Client's relieved. Client's very happy. Again, I'm Andrew Wiseman at Cloncurry Magistrates Court. Thanks for watching.