Mizikovsky v Commissioner of Police

[2021] QCA 22

Queensland Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Burden of proof
4. › Exceptions and provisos
5. › Whether onus on prosecution to negative exception or on defendant to establish it
6. › Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 132(2), s 139(2)
1. Criminal Law
2. › Road traffic offences
3. › Failing to drive to left of dividing line
4. › Exception for avoiding obstruction
5. › Whether bend in road constitutes 'obstruction'
6. › Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), s 132(2), s 139(2)
1. Appeal
2. › Leave to appeal
3. › District Court to Court of Appeal
4. › Threshold for grant of leave
5. › Whether substantial injustice and reasonable argument of error
6. › District Court of Queensland Act 1967 (Qld), s 118(3)

Quick Take

The exceptions in s 132(2) of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld), including the s 139(2) obstruction exception, place the burden of proof on the defendant to establish the exception, not on the prosecution to disprove it. A bend in the road is not an 'obstruction' within the meaning of s 139(2); the term contemplates an obstacle or defect in or on the roadway which the driver would be forced to pass through if unable to avoid it. The Court left open whether a burden of proof error in a minor traffic matter would constitute 'substantial injustice' for the purposes of s 118(3) leave.